Sense of urgency on detainees

By Lyle Denniston
on Jul 8, 2008 at 6:41 pm

Taking firm control of the epic and still-building drama over the legal rights of Guatanamo Bay detainees, and displaying a strong sense of urgency, a federal judge in Washington on Tuesday warned governnent lawyers that any further delay will “reflect badly” on their position and will cause judges to “become suspicious of the reasons” the process is not moving toward decisions on whether detainees are to remain in captivity, be released, or sent elsewhere.

Senior U.S. District Judge Thomas F. Hogan, in a non-stop, two hour and 25 minute afternoon hearing, began taking action at his first opportunity before an audience of more than 120 lawyers for detainees, a dozen government lawyers, and some two dozen other detainees’ counsel listening in on a telephone conference call. 

The largest courtroom in Washington was near capacity as Hogan, a 70-year-old native of the nation’s capital, remarked in closing: “The government has got to get across the message that we are going to move these cases forward, and not in the normal course of business; this is an extraordinary situation…The government has to set aside every other case pending before them and get these cases moving first….People in all levels of government should understand that.”

Although he did not give an overall estimate of when the detainee cases would wind up, it seemed clear that he was deeply skeptical of the year to 18-month timetable that government lawyers have estimated it would take.

The judge noted that he was getting started “less than a month” (26 days exactly) since the Supreme Court ruled in Boumediene v. Bush that Guantanamo prisoners have a constitutional right to file habeas challenges to their detention.  More than 250 habeas cases are now pending, or were revived by one of the judge’s first orders Tuesday, and Hogan has the assignment of “coordinating judge” to work out common issues and speed the process.

The judge indicated that, by Thursday or Friday, he will issue an order on the schedule he expects the cases to follow, and noted that he would not look with favor on any effort to stretch out that schedule.  He also told lawyers for both sides not to file a lot of “interim” motions, but, instead, simply to call him on the telephone if they are having problems that he could solve quickly.

“We are in all-new territory.  The District Courts are going to have to improvise,” he said, adding: “I would like to orchestrate a rather frequent review of where we are.”  Except for a 14-day hiatus in August, he said, “I will be available.”

Technically, Hogan had before him Tuesday about 125 habeas cases, involving detainees who are still being held at Guantanamo.   But he has ordered status reports by next Monday on scores of other cases that involve detainees who may have been transferred out of Guantanamo, and his assignment to coordinate includes those, too.

Only about two dozen detainee cases are not in Judge Hogan’s court for the initial coordination effort. The hearing he held Tuesday is likely to be duplicated on Thursday afternoon when another judge, Richard J. Leon, goes through his own review of coordination issues for some 18 cases he has.  One other judge is temporarily holding back from Hogan’s process a handful of cases.

Hogan, however, left no doubt that he was taking charge of the overall effort to resolve detainee cases, some of which have been pending for more than six years, and have led to three major Supreme Court decisions — all favorable to the detainees — and a handful of other rulings by federal appeals courts.

One of the most significant disputes to emerge at Tuesday’s hearing came over the government’s plans to file reports that will attempt to justify the continued detention of many detainees.

The government has proposed to file only 50 of those so-called “returns” each month, starting two months from now.  For some 100 pending cases, it wants to file updated versions from those compiled earlier in every one of those cases. For another 100, it has yet to file even initial returns. But detainees’ lawyers suggested Tuesday that reports should be filed — at least containing what the government already has on file — by the end of next week, so that detainees can then begin drafting demands for additional information the government may hold.

Gregory G. Katsas, an acting Assistant Attorney General, argued fervently that the government should not be confined to what it knew in 2004 when initial military reviews of detainees’ status were made. That, he said, “ignores four years’ worth of continuing and improving gathering of intelligence and information about detainees.  The government is entitled in 2008 to make its best case.”

He also argued that, in those intervening four years, there has been a substantial change in legal understandings about detainees’ rights and government powers.   The government, he said, is entitled to take the time to ask questions of what those legal developments “require of us.”

Even meeting the schedule the government has proposed, Katsas said, would “strain our resources almost to the breaking point.”

Shayana Kadidal, a Center for Constitutional Rights lawyer speaking for the detainees’ side, denounced the government schedule to run out the filing of “returns” until the first week in December.  Within ten days, he said, the government could put before the court all of the records assembled about detainees up to 2004, and then it could indicate a week later — by July 25 — its intention to file updated information in specific cases.  Because the government has not filed its justification in scores of cases, Kadidal argued, many detainees “do not have a substantive clue why they are being held.”

In response, Judge Hogan made it clear that he plans to decide on the priority of cases to be processed on his schedule, to prevent lawyers from trying to persuade other judges to take up their cases first. He also said that he would not allow the government automatically to file updated reports with later information on specific detainees. 

 Accepting the suggestion of detainees’ counsel, the judge said he would require the government to ask permission to file an updated “return,” with the reasons for seeking to do so filed along with the request.

“It does concern me,” the judge said, that the government was planning to file scores of updated reports with “additional information later acquired.” The government, he noted, believed back in 2004 that its reasons for detaining individuals were sufficient.  With an effort to put forth new justifications, the judge added, the government may be casting doubt on the validity of its original detention decisions.

In discussing a possible priority of cases, Hogan said he was considering lining up a schedule of “first in, first out” — that is, the longest-pending habeas cases should be processed first.  He said he would wait to act on the government suggestion to put last on the list the habeas challenges by detainees who are facing war crimes trials before military commissions.  Another judge must act first, he said, on a habeas challenge to the entire military commission process.

The judge showed an inclination to decide some of the major legal issues that divide the two sides over the specific legal rights or claims that detainees will be allowed to make as habeas proceedings unfold.  He said he would welcome legal briefs from both sides arguing those points, and those briefs would still be helpful even if he did not decide common legal issues, but referred them back to the judges who had the cases originally.

Katsas strongly urged Judge Hogan not to hold back on deciding legal questions, as opposed to procedural issues. At least, the Justice Department official said, the judge should ask for very specific proposals from each side, and then decide which issues he was able to decide with a common result applicable to most if not all cases.

Another lawyer for detainees, Gitajanli Gutierrez, also from the Center for Constitutional Rights, opposed a broad role for Judge Hogan in deciding legal questions.  “Broad-brushed procedures at this point are inappropriate,” she said. “It is 2008, and it is now time to drill down into the facts of individual cases, not to deal with abstractions….The nature of the process each individual is due is determined by the facts of each case.”

After a government trial lawyer, Judry Subar, told the judge that the Justice Department was “ramping up” its legal staff with 50 added lawyers to deal only with habeas cases, Hogan wondered whether there was a similar commitment in other agencies of government — such as the Central Intelligence Agency — to increase their efforts toward the detainee cases.  Subar and Katsas said there was.

Among preliminary issues Judge Hogan went ahead to decide on Tuesday, he ordered a lifting of earlier court orders that put scores of detainee cases on hold awaiting the Supreme Court’s ruling on detainees’ rights, and he consolidated before one judge 17 cases involving members of a persecuted Chinese Muslim minority, the Uighurs.

It was clear that, in coming days and weeks, there will be a flurry of orders from Judge Hogan.  He said he doubted that there could be final rulings on the merits in the next few weeks, although he did say that an undetermined number of detainee challenges are “ready to go” right now, and would be decided promptly