Sharp dispute over shape of detainee cases
on Jul 26, 2008 at 8:49 am
In the first formal moves to shape the federal courts’ review of the government’s power to keep detainees in captivity at Guantanamo Bay, the two sides in the courthouse battle proposed sharply differing approaches on Friday night. With agreement on few critical points, lawyers for the government and for detainees set up a running dispute that potentially could lead quickly to multiple appeals, perhaps reaching the Supreme Court.
As expected, the detainees’ attorneys suggested a sweeping and penetrating, if somewhat flexible, probe of the government’s reasons for original detention decisions and for continuing to confine captives, and Justice Department attorneys proposed a more streamlined process that would significantly narrow the judges’ review.
The briefs are each side’s attempt to carry out their view of what the Supreme Court had in mind in its June 12 decision (Boumediene v. Bush, 06-1195) declaring that the detainees have a constitutional right to challenge their captivity. The detainees’ arguments stress the historic importance of a detailed examination of Executive Branch decisions to hold individuals without charges, while the government’s arguments stress the need to keep the process confined in order not to intrude on the Executive’s “wartime” powers.
These opening briefs on the “procedural framework” for 200 or more habeas challenges by detainees were filed in U.S. District Court in Washington shortly before midnight Friday. While the briefs were not designed to discuss just what constitutional rights the detainees may have during this process, those are discussed to some extent — with significant disagreement.
The detainees’ brief can be found here, the government brief here, and the government’s proposed “case management” order is here. Each side will file a response to the other’s document by Aug. 1.
Senior U.S. District Judge Thomas F. Hogan, who is attempting to coordinate the cases that are pending before 13 different judges (two judges are doing their own managing of cases), will decide some of the process issues and may decide that others must go back to individual judges for decision. The two sides, as expected, disagreed on which issues could be settled once for all cases.
There is no specific timetable for Judge Hogan or others to rule on the “framework” of the habeas proceedings, but the District Court’s chief judge has stressed that the cases are to stay on a “fast track.” Already, the Justice Department has begun pursuing one appeal on an issue that has surfaced, and other appeals seem likely as the process unfolds.
While detainees’ counsel have continued to ask that most of the decisions about how the habeas cases go forward be left to individual judges, Judge Hogan accepted the government’s suggestion that each side file legal briefs on a half-dozen procedural issues, to see if some might be resolved for all cases. The briefs may also apply if some of these issues are returned to individual judges for action.
From the very outset of the opposing briefs, disagreement emerges in fundamental ways. The detainees call for “a searching, independent inquiry into the lawfulness” of detention, and argues that the detainees have procedural rights under federal habeas law and under several provisions of the Constitution. That brief dwells heavily on some of the broader language about detainees’ rights that the Supreme Court majority used in Boumediene. The government, in contrast, calls for a “prudent and incremental” process, with the detainees having no rights under habeas statutes and only such righs as are minimally necessary to satisfy the Constitution’s due process clause — as narrowly discussed by the Supreme Court in its first war-on-terrorism decision, Hamdi v. Rumsfeld in 2004.
And, also at the outset, the two sides diverge on one of the foundation issues Judge Hogan raised: “whether such [procedural] issues are amenable to common resolution.”  The detainees put Judge Hogan on notice that they will try to insist that most of the procedural issues be resolved in individual cases by individual judges, while the government told him that every one of the procedural issues should be decided in common for all cases.
“Individual judges…can resolve most of these habeas cases,” the detainees’ brief contended. “Addressing these issues separately in hundreds of individual actions does not make sense,” the government brief argued.
The two sides agree, but only on the most general level, that the detainees have some constitutional right to “due process.” They differ markedly on what “process” is “due.” For example, the detainees, while suggesting that federal statutes give them the right to confront government witnesses against them, also discuss this right in constitutional terms. The government argues that no such right of confrontation should exist in these cases.
Detainees: Each prisoner should have a right to demand information from the government, especially to challenge any sworn statements that the government offers. Each should have to get permission for “discovery,” but the judge should be “permissive” about it. Aside from answering demands from detainees for information, the government at all times has an obligation to volunteer anything it knows that would support the detainee’s challenge; this should last throughout. A ruling applying to all cases should declare a right to discovery, but specific discovery issues can only be decided by individual judges.
Government: Detainees are not entitled to discovery at all. The government promises to supply any evidence that would undercut is claim to have justified detention, and do so with its initial filing of evidence supporting detention. That promise should make discovery unnecessary. The government will not conduct “an open-ended search” for any evidence, favorable or otherwise, about an individual detainee. If a judge decides some discovery is necessary, that should occur only rarely, as “a last resort” to resolve a dispute, and must be closely managed by the judge to make sure it remains narrow in scope.
Basis for seeking a court hearing on the evidence:
Detainees: Each prisoner has a right to a hearing, but one need be held only if there are factual disputes in the papers filed by each side on the basis for detention. While a common decision could be made to establish a basic right to a hearing, individual judges should decide for or against a hearing case by case, and would exercise “de novo” (independent) judgment. The detainees have full right to offer evidence that supports their challenge, including claims that evidence against them was obtained by torture.
Government: A hearing to weigh evidence, with witnesses on the stand, is “almost entirely inappropriate,” and, if deemed necessary as “a last resort,” should not be held unless the judge decides that – without a hearing – the evidence supports the detainee’s challenge.
Basis for allowing out-of-court statements, including “hearsay”:
Detainees: Each side should have a limited right to offer sworn statements of evidence – that is, affidavits or other forms of “hearsay” evidence. In response to any such evidence offered by either side, the opposing side has a right to raise questions to test the reliability of the statement or evidence. This testing must be done before the evidence is allowed. Hearsay evidence gathered by torture is not to be admitted. Any right to admit hearsay evidence must be judged case by case.
Government: “Hearsay” evidence “will be the norm, not the exception,” and may be submitted by either side, including by sworn affidavits or declarations. Each side may make arguments about the weight and believability of any evidence. A presumption that government-submitted evidence was entitled to greater weight would be appropriate.
Right to confront witnesses or subpoena witnesses to appear:
Detainees: Each individual has a right to confront witnesses against him, and to summon witnesses to testify. A ruling applying to all cases could declare that there is a right to confront and call witnesses, but judges in individual cases must decide whether to allow that, based on whether a witness is available and how important that witness’ evidence might be. A detainee’s right to confrontation would be exercised through his lawyer. (It is not clear from the brief what position the detainees will be taking on their right to appear in person — an issue not raised by Judge Hogan at this stage. It does appear, though, that detainees’ lawyers would regard that as a case-specific issue, to be decided by individual judges.)
Government: Neither side may demand that any witness be called to appear for any hearing on the evidence. If a judge decides a detainee should be allowed to testify, this may be done by telephone or video from Guantanamo Bay.
What amount of proof is needed, and which side has the burden of convincing the court:
Detainees: The government must produce the evidence it believes supports detention, and the evidence must be “clear and convincing” in order to avoid the serious risk that a detention decision was wrong. Neither side’s evidence is entitled to any “presumption” that it is valid, true or reliable. Individual judges should weigh the competing evidence.
Government: Each side is to present its written evidence, and the judge shall then order briefing on the legality of the detention. The government must present evidence that shows it is “credible” to justify detention and, if it does, the burden shifts to the detainee to offset that with “more persuasive evidence” against detention. The government’s evidence is entitled to a presumption in its favor, but the detainee can rebut it.
