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New lift for detainee challenges

In a ruling that may give lawyers for Guantanamo Bay detainees expanded opportunities to challenge the government’s reasons for keeping them confined, the D.C. Circuit Court on Friday spelled out new rules on when the prisoners’ lawyers get to see secret information in government files.   The ruling in Al Odah v. U.S. (05-5117) and consolidated cases can be found here.

Of particular importance, the Circuit Court said that merely because the government contends that secret data will not bolster the detainees’ challenges does not control when a federal judge must provide access to that information for the detainees’ lawyers.  Those lawyers, the Court indicated, may be allowed by a judge to get the withheld information itself — or a substitute that reveals the substance without showing how the government collected it — if the judge finds it would be helpful to the detainees’ challenge.  That is the judge’s job, not the government’s, the panel ruled.

Procedures must be used, it added, that makes the judge’s review of each detainee’s case “meaningful” as a test of the government’s reasons for detention.  If access to secrets is the only way to make court review meaningful, that will have to be provided, it indicated.

The Court did not put its ruling into effect immediately, however, since it allowed time for the government to ask the full en banc Court to review the issue.  If the new procedures are put into effect, the two sides presumably would have to battle out the access issue, one case at a time, perhaps stretching out over several months for the detainees still at Guantanamo.

The ruling directly affects cases that were controlled by an access order issued by a District Court judge more than four years ago. Because of intervening legal and constitutional disputes, the Circuit Court has just now resolved when the government might have to share with detainees’ counsel secrets that formed, at least in part, the government’s reasons for holding an individual at Guantanamo.

It is unclear just how far the new ruling will go to cases that are now going forward in District Court under another judge’s access order, issued in November.  But, Friday’s ruling does speak more generally about the duties of the judge, and the two sides in habeas cases, on resolving disputes over access to data withheld from detainees’ lawyers when the government supplies its formal in-court answer to a challenge to continuing imprisonment.

The ruling was issued without a specific author (rather, it was issued “per curiam,” or “by the court”) by a panel that included Circuit Judges Merrick B. Garland and Janice Rogers Brown and Senior Circuit Judge Stephen F. Williams.

Technically, the ruling dealt with the so-called “returns” that the government must file to respond when a prisoner has filed a habeas petition testing the reasons for being held.  In Guantanamo cases, beccause much of the information the government has about detainees is classified, the government has been filing “returns” with secrets deleted (or “redacted”).

But detainees’ lawyers who have gained security clearances have been demanding access to the deleted material, too.  In the case decided Friday, the government has declined to turn over to detainees information that involves individuals other than a detainee himself, or highly “sensitive” information that would reveal an intelligence source.  The government said detainees’ lawyers did not need to see those materials because, in the government’s view, they would not support release of a detainee.

The Circuit Court ruled that it is up to a District judge, not the government, to evaluate whether the withheld data is “material” — or, as the Court put it, “helpful” — to the detainee’s challenge.

The panel then went on to spell out a procedure that allows the government, if it has to share some secret information, to craft substitutions that would take the place of the actual classified material but summarize it adequately.

In addition, the panel said that the series of steps it was laying out for deciding the access issue need not be carried out one step at a time, but could be addressed in an omnibus review of access for a given detainee.