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Federal Judiciary

: SCOTUSBLOG

US files first appeal in new detainee cases

By Akin Gump Supreme Court Practice Group

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NOTE: The District Court in Washington has now created a web page for the Guantanamo cases. A news release providing information about the page is here.

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The Justice Department on Friday notified the federal judge in charge of coordinating scores of new Guantanamo Bay detainees’ cases that it is appealing his order requiring the government to give advance notice before it moves any prisoner out of the military prison on the island of Cuba. This marks the first appeal in what could be a number of them as deep controversies continue to split government attorneys and lawyers for the captives.

On July 10, in one of his first significant actions as coordinating judge, Senior U.,S. District Judge Thomas F. Hogan told the government to provide detainees, their lawyers and the Court 30 days’ advance notice “of any intended removal” of a prisoner from Guantanamo — if a detainee’s counsel asks for such an order, as many now have.

Hogan did say in the order that he recognized that issues over a judge’s power to order such notice were pending in the D.C. Circuit Court, and added that nothing in his order for such notice should be interpreted as a ruling on such power. Even so, the judge said, he was adopting the view of some District judges who in the past had blocked such transfers unless there was such advance notice.

The Justice Department has argued strenuously that federal judges have no authority to interfere with government decisions on transfers of Guantanamo detainees to any other place. It has contended that Congress, in the Military Commissions Act of 2006, took away any such authority from judges. It also has argued that judicial interference with transfers would violate the Constitution’s separation-of-powers doctrine.

In a notice of appeal Friday, the Department said it was appealing Hogan’s order “in its entirety” in 117 pending habeas cases filed by detainees. The notice, as usual, contained no explanation of the basic and scope of the appeal, other than contesting all of the Hogan order.

Full post as published by SCOTUSBLOG on July 25, 2008 (boomark / email).

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