Federal Judiciary

U.S. seeks to escalate detainee delay dispute

By Akin Gump Supreme Court Practice Group

Seeking to head off court-imposed punishment for failing to meet deadlines for filings in Guantanamo Bay detainee cases, the Justice Department on Monday sought to raise the stakes, foreseeing two potential threats to national security if it is sanctioned.  The government, it argued in the new filing, could be forced to choose between releasing detainees — allegedly to return, perhaps, to terrorism — or loss of control of national secrets.

The core of this new dispute is the simple one of meeting deadlines — in fact, deadlines that the government sought, over detainees’ objections that they were too generous.  The government has conceded it has not been able to meet them, and it is seeking relaxation of them until it can try to catch up.

But it has become increasingly apparent that the underlying controversy is over classified information — how much of it there is, who gets to see it, what process should be used to prepare it for court review, what effect will it have on continued detention of prisoners.  And, because the government has primary control over secrets, and it guards that control from any sign of judicial interference, the task of sorting it out in court is more difficult.

Senior U.S. District Judge Thomas F. Hogan, who is overseeing the bulk of nearly 250 detainee habeas cases, is in the midst of this dispute, as he weighs the government plea to give it more time to put forth its justifications — heavily laden with secret data — for keeping detainees at Guantanamo.  In its initial plea for relief, and more noticeably in its reply Monday to the call by detainees’ lawyers for punishment, the government has sought to make national security considerations the key issue and, in the process, possibly to narrow Judge Hogan’s options.

Detainees’ lawyers reacted strongly last week, contending that the government has added a layer of review of secrets that is not necessary, that the government will only respect deadlines if it is punished for missing them, and that the government has done much less than it could to produce its reasons for holding detainees.  Detainees’ counsel asked for a step-by-step, increasing level of sanctions for the government delay.

That thrust produced the Justice Department’s strongly worded reply on Monday.  Detainees’ counsel, it said, is seeking “to force the Government to choose between its duty to present, consistent with the currently governing legal landscape, the most appropriate case to ensure that those held as enemy combatants do not return to the fight and its duty to protect classified intelligence (and the assets used to acquire that intelligence) from improper disclosure that would endanger national security interests.”

No sanctions or punishment of any kind should be imposed; the deadlines should simply be stretched out, the reply contended.  It accused detainees’ lawyers of having a “cavalier attitude toward the protection of classified information, born of an overly simplified view of the risks and methods associated with dissemination of such information.”

Judge Hogan has given no timetable for acting on the delay issue.

Meanwhile, the Justice Department made a new effort in D.C. Circuit Court to shut down at least temporarily that Court’s part in reviewing government detention decisions.  Lawyers for a group of detainees, challenging Pentagon rulings to keep them imprisoned as “enemy combatants,” have asked the Circuit Court to require the Pentagon to promptly provide a full array of the information it has about their clients, and which may have been the basis for holding those detainees.

Replying to that “motion to compel,” the Department said in its newest filing that the Circuit Court should put some 190 such detainee cases on hold until after District Court judges resolve the prisoners’ habeas claims.  At a minimum, it said, no action should be taken on the motion to compel until after the Circuit Court has decided whether to put the detainee cases aside.

Full post as published by SCOTUSBLOG on September 15, 2008 (boomark / email).