Federal Judiciary

Early test of detention reasons

By Akin Gump Supreme Court Practice Group

The Justice Department, in seeking to bolster its claims to continue holding scores of detainees at Guantanamo Bay, has been filing a stack of new reports in court to update its reasons. In fact, it has said it plans to file amended reports in nearly all of the 250 habeas cases now in District Court.  But, on Tuesday, one of its first new offerings encountered a sharp attack from lawyers for six of the detainees who won a Supreme Court ruling and the right to challenge their detention in federal court.

It is difficult for outsiders to assess the government’s new justifications for detention, since the primary filing in this case — and in many others — contains much classified information, and the public versions are heavy with deletions of materials the government wants to keep secret.

The challenge mounted by detainees’ counsel, however, could produce an early test of federal judges’ reaction to what the government has said will be its “best case” for continuing to hold each detainee who remains designated an “enemy combatant.”

The attorneys sought to bring on that test by asking U.S. District Judge Richard J. Leon, who has about two dozen detainees’ cases in his Court and is moving them rapidly, to strike from court records the massive filing the government made about five Algerians in the case titled Boumediene v. Bush — the same case that the Supreme Court decided, now back in District Court.   The new motion complained to Judge Leon that the “amended factual return,” as such documents are technically called, had no signature by any government official swearing to the truth or reliability of the information.  The judge should order someone to vouch for the materials, or else strike them from the case, the motion argued.

At issue are both the classified and unclassified versions of a 53-page “narrative” of information, plus 134 attached exhibits. The classified version was filed August 22, and a heavily redacted public version was filed Sept. 5.  In the public version of the exhibits, nearly three dozen of the total are blacked out entirely, and almost all of the remainder are partially blacked out.  (The public version can be examined on the Court’s docket by those with PACER accounts.  In docket 04-1166, it is displayed in three docket entries — 161 through 164.)

The “narrative” describes Lakhdar Boumediene and the four other Algerians, all of whom were captured in Bosnia, as being either members of the Al-Qaeda terrorist network or being associated with Al-Qaeda “and other suspected terrorists” in activities “against the United States and its allies.” The opening pages say that the materials came from interviews with the detainees and others “conducted by law enforcement and intelligence personnel” plus information “derived from other sources and methods.”

In Tuesday’s response, detainees’ counsel contended: “Although the facts alleged by the Government in support of continued imprisonment are contained in the Narrative, no officer of this Court has attested that the alleged facts are true or have a good-faith basis in fact.”  The cover letters, it added, do not contain specific endorsements of the truth or reliability of the materials.

That, the motion contended, is a violation of the federal law and federal court rules governing the “returns” in habeas cases in particular and court filings in general.  The Narrative is covered by those provisions, it argued, because “it is the only statement of the ‘facts’ that the Government says are sufficient to imprison these six men indefinitely….It is easily the most important ‘paper’ submitted by he Government so far.”

Some officer of the Court representing the Government, the motion asserted, must sign it or else the Government has not put forth formally the “true cause of detention.”  It added: “Surely someone at the Department of Justice is willing to do that, if these allegations are to be given the weight and credibility that the Government contends are sufficient to justify indefinite military detention.”

The Justice Department presumably will have a chance to respond to the new challenge before Judge Leon acts.  

Full post as published by SCOTUSBLOG on September 16, 2008 (boomark / email).