Federal Judiciary

New plea for common plan on detainees

By Akin Gump Supreme Court Practice Group

Setting the stage for a key hearing next week on the process for handling court cases involving some 200 Guantanamo Bay detainees, the Justice Department on Wednesday night made a new plea to a federal judge to settle himself some “common issues” in those cases, or else allow the government to appeal to get those issues settled promptly by the D.C. Circuit Court.

This was the final filing before Senior U.S. District Judge Thomas F. Hogan holds a hearing next Wednesday at 3 p.m. to consider publicly the government’s sweeping challenge to Hogan’s month-old order setting up the arrangements for individual judges to follow in proceessing 114 individual habeas cases, many involving multiple detainees.  The detainees’ lawyers have urged Judge Hogan either to leave those procedures as is, or else modify them in some ways to benefit detainees’ challenges.

The government’s reply brief can be found here; an attached exhibit is here.  Hogan’s order scheduling the Wednesday hearing is here.

When detainees’ counsel filed their briefs on the procedures issue last week, many argued that Hogan, who has been acting as coordinating judge, should now pass the cases back to the judges before whom the habeas challenges were originally filed, so that they can go ahead and start making decisions.  Many of those briefs also argued that the government has no right to appeal at this stage.

In reply, the government contended that Hogan’s “case management order” issued Nov. 6 raised a major issue for the government by imposing significant new burdens on information it must gather and pass on to detainees’ lawyers beyond data that the government was planning to use to justify continued detention of some of the captives.

Moreover, the reply contended, the order raises a series of questions that are common to all 114 cases over the standard for accepting government evidence, the use of “hearsay,” when hearings on evidence are to be held.  And, the reply added, Judge Hogan will retain an important coordinating role in setting up schedules for the merits hearings by individual judges to make the cases move more efficiently toward decisions.

The government also used its reply to claim anew that Hogan’s order poses a major threat to the government’s security because its scope threatens disclosure of a wide array of classified data, and requires intelligence and military agencies already busy with “prosecution of two wars” to be diverted to gathering information for court cases.

Full post as published by SCOTUSBLOG on December 04, 2008 (boomark / email).