Federal Judiciary

Major new post-Boumediene dispute

By Akin Gump Supreme Court Practice Group

Eleven months after the Supreme Court ruled that the Guantanamo Bay detainees “are entitled to a prompt hearing” on their challenges to captivity, a major new controversy has sprung up in lower courts, and the Obama Administration has warned that this may create “enormous complexities” that could mean up to another year of delay before some 150 cases could move ahead.

The dispute arises over running two parallel tracks of reviewing detainee cases — one by the courts, the other by an interagency task force that President Obama set up in January, two days after he took office.

In a stck of legal papers filed late Tuesday night in U.S. District Courts, the Administration’s lawyers said that the dispute threatens to disrupt the President’s plan to close the Guantanamo detention facility by next January. And, in an escalation of the legal rhetoric, the filings raised the prospect that the Administration may contest the constitutionality of a series of orders by judges that set off this new and unanticipated legal fight. The documents asked the judges to reconsider, and take a markedly different approach. (Those with access to Pacer filings in District Court may find the documents in 02-838, at document entry 553, dated May 12. It is an 89-page file.)

Declaring its commitment to fulfill the Supreme Court’s order last June 12 in Boumediene v. U.S. for “a prompt hearing” for detainees, the Administration said that the goal “cannot be reconciled” with new obligations that the judges have imposed on the government. It could take at least four and as much as 12 months to satisfy those obligations, it added.

The President’s Guantanamo task force is reviewing the status of each of the 241 current detainees. It will decide whether each is to be prosecuted for some crime, transferred elsewhere, set free, or held indefinitely somewhere else — perhaps at some new detention site within the U.S.

So far, it has completed the review of 30 detainees, and decided that each is eligible for transfer. Diplomatic negotiations with other countries over where to send them are ongoing.

The task force was doing its work independently of the cadre of government lawyers who have been working opposite detainees’ lawyers in the habeas cases in District Courts in Washington. That separation, however, began to close a few weeks ago, when eight of the District judges handling detainee cases began issuing orders to require the President’s task force to share with detainees’ lawyers information about them that the task force gathers. Such orders have now been issued in at least 42 cases, it appears.

Some 23 of the orders, issued by five judges, require the government to go over all of the information assembled by the task force, find anything that might help the detainees challenge their imprisonment, subject to a possible court order to turn it over for use in those cases. Some 19 other orders, issued by three judges, would compel the task force to automatically hand over such helpful evidence to detainees’ lawyers.

This would place a new demand, the government filings said, to go over at least 1.8 million pages of information now in the task force’s database, and maybe other government files to which the task force has access. The information came from, or is still in, the files of some seven federal agencies. Task force teams are going over the each detainee’s file, then making a recommendation to task force members.

It would divert the task force staff from their work to require them to go over the files for purposes of locating helpful material for the detainees, and do so when the demands of a habeas proceeding are different from what the task force is doing, the filings argued.

It proposed that the judges withdraw their orders, and adopt what it called “a global proposal” that would ultimately apply to at least 150 cases, including those in which the judges’ have orders access to task force materials.

“Requiring comprehensive searches for and production of all exculpatory material to the Task Force’s principal database cannot be squared with the court’s interest in expedition, and would significantly burden intelligence agencies that must clear discovered evidence for production,” it said.

Under the proposal, each detainee and his lawyer would be given an option. The first option would be to choose to go ahead without any further delay in their habeas case, but without access to material from task force files, if the detainee’s lawyer decides that not much could be gained by waiting for the task force process to be completed. The second option would be to choose to wait until the task force staff makes a recommendation, and get access only to what the staff considered in that process.

The filings urged the District Court not to opt for what it called the “third option” — that is, to go ahead with the judges’ existing orders, without any specific restrictions on access. If access to the full task force database is to be ordered, the Administration suggested, it should only be done if detainees are willing to accept the “trade-oiff” of a significant delay in their cases, going to the back of the line for cases to proceed, and if the duty to produce information is limited to cases where the task force decides that an individual should remain detained.

In no event, the government contended, should task force staff members have to decide what in their files is helpful to detainees’ challenges. Detainees’ lawyers should have to tailor their requests for specific information they want from the files that they think would support the challenge.

The filing was accompanied by nine separate statements from government officials describing how the task force is doing its work, and explaining what they see as complications of obeying the judges’ existing orders.

(Thanks to Howard Bashman of How Appealing blog for the tip to these filings.)

Full post as published by SCOTUSBLOG on May 14, 2009 (boomark / email).