U.S. to challenge detainee case duties
on Nov 18, 2008 at 10:29 am
A legal gain for Guantanamo Bay detainees, clearing the way for judges to move forward with the captives’ court challenges, goes too far and must be rolled back, the Justice Department will argue in a new filing expected later Tuesday. (NOTE: This post will be expanded when the document is filed.)
The Department’s plan was outlined broadly late Monday in a report in three detainee cases pending before U.S. District Judge Ellen S. Huvelle (the lead case is Ameziane v. Bush, 05-392). The report was a joint one by attorneys for the government and for detainees, replying to a Nov. 7 order by Judge Huvelle seeking their views on the duties to be imposed on both sides and the procedures to be followed as the detainees’ habeas challenges go into the merits stage.
Judge Huvelle up to now has taken no action on the habeas cases before her, because those had been transferred temporarily to Senior Judge Thomas F. Hogan, who is coordinating some 200 cases pending before many of the District judges in Washington. On Nov. 6, Judge Hogan issue a “case management order” laying out the procedural framework for all the cases he is coordinating, leaving it up to individual “merits judges” to decide whether to modify it.
In response, the other judges have begun reacting to the Hogan order, with some embracing it as written and others making changes. For detainees and their lawyers, the Hogan order and the followup responses by the other judges cleared the way for the habeas challenges to go forward. Some detainees’ counsel had grown uneasy, since it has been five months since the Supreme Court in Boumediene v. Bush gave the detainees a constitutional right to challenge thier detentions anew. Most of the cases have been on hold during that time.
In the filing in Ameziane, the Justice Department’s part of the report said that its lawyers will file on Tuesday a plea for Judge Hogan to relax some parts of his order, or, if he does not do so, to set the stage for the Department to file an immediate appeal to the D.C. Circuit Court.
Changes in the order are needed, the Justice Department said, because the Hogan order, “if expansively construed, creates obligations that simply cannot be met within the timeframe given.” Some parts of the order, it added, “place tremendous and improper burdens on the government related both to resources and national security interests.
In addition, the filing said that Hogan had created a procedural regime that gives detainees more safeguards than the Supreme Court has intended in its rulings on detainees’ rights, including the Boumediene decision.
If Hogan keeps his order intact, the Department said, it wants a “highly expedited” review by the Circuit Court because the Hogan order “seems to require broad disclosure of sensitive classified information” and it “would be preferable for the scope of those requirements to be settled before such disclosures are ordered.”
The detainees’ part of the Monday filing said that they will ask Judge Huvelle to modify the Hogan order to provide added safeguards for the prisoners.
