Tough stance on habeas cases
on Aug 1, 2008 at 12:29 pm
U.S. District Judge Emmet G. Sullivan, who has a reputation for being impatient with lawyers, is putting pressure on Justice Department attorneys to promptly work out ways for lawyers representing Guantanamo Bay detainees to have greater access to the prisoners. In a sternly worded series of orders issued Thursday, Sullivan ordered the Department to file a report a month from now on “the government’s efforts to streamline and improve the attorney visitation procedure.” (One of the orders, illustrative of the others, can be found here.)
Moreover, Sullivan said, if the government plans to “raise logistical issues” — including issues about security, travel and availability of resources — “counsel is hereby put on notice that they need to resolve those issues now. The Court will not tolerate eleventh-hour delays to address issues that are foreseeable. In other words, do not wait until the Court sets a hearing date to raise such issues and expect the Court and the [detainees] to wait while the Government resolves those issues.”
Lawyers for the detainees have complained for years that the Pentagon sharply restricts their opportunities to meet captives at Guantanamo, and then surrounds any visits they are allowed to make with restrictions and limitations. They also have been complaining recently about limits on air travel to the U.S. Naval base on Cuba to meet with prisoners. Judge Sullivan’s orders appeared to be, at least in part, a reaction to some of these complaints.
They also were a part of the judge’s determination to move the cases before him as rapidly as possible. Citing the Supreme Court’s June ruling on detainees’ legal rights (Boumediene v. Bush), Sullivan said “this Court will do everything in its power to ensure that [detainees are] afforded a hearing….as soon as reasonably practicable” on their habeas challenges to continued detention.
Sullivan is one of two judges on the District Court in Washington who have chosen to process themselves the detainee cases before them, rather than sending them to a “coordinating” judge for at least some initial processing, and maybe some preliminary legal rulings. The other judge going it on his own is Richard J. Leon.
Both Leon and Sullivan have included, in their recent orders, directions to lawyers for both sides to file legal briefs on how their habeas proceedings are to be structured. Those so-called “procedural framework” issues have already produced a sharp clash in briefs filed with the coordinating judge, Senior Judge Thomas F. Hogan (see this earlier post.) Judge Leon has ordered simultaneous briefs on those issues by Aug. 12, with replies by Aug. 19. Judge Sullivan, in each of the eight closely similar orders he issued Thursday (see link, above), raised most of the issues put by Leon and already briefed before Hogan, but added a new one, indicating that he may take a very skeptical view of the Pentagon’s previous method of deciding whether to designate prisoners as “enemy combatants.” On the procedural questions, Sullivan’s order did not seek simultaneous briefing; the government is to file its brief Aug. 12, with a response by detainees’ counsel on Aug. 22 and a reply by the government Sept. 4.
In another move, Sullivan has told both sides to file status reports in the cases before him every 30 days, starting with one on Sept. 2 — the one that is supposed to include the attorney visitation issue.
