New DTA, habeas troubles
on Aug 29, 2008 at 10:36 pm
The Justice Department, frustrated in its ability to get free of one level of court review of Guantanamo Bay detainee cases, and unable at the other level to keep to is own schedule for turning out reports to justify detention, has taken two significant steps to try to cope. It has vowed to shut down its part in the D.C. Circuit Court’s review of detainee challenges under the Detainee Treatment Act of 2005, and it has formally asked for more time to file in District Court its answers to challenges pending there under the Supreme Court’s Boumediene v. Bush decision.
These developments emerged as top Justice Department officials, joined by Pentagon and intelligence officials, vowed Friday to continue to try to help the courts process some 250 District Court habeas cases that federal judges have insisted on resolving as soon as possible. Officials have made it clear that they consider those cases to have the most claim on the government’s time and resources, and equally clear that they will do no more than they are actually compelled to do on the DTA cases in the Circuit Court.
The Supreme Court, in Boumediene, stressed the importance of moving rapidly with the long-pending habeas cases, and said the detainees did not have to attempt first to ge the Circuit Court to act on their DTA appeals. But the Court also said that the DTA process would remain “intact” and it did not prevent detainees’ lawyers from pursuing that routine, if they chose — as a number have now done.
Justice Department lawyers, in a variety of ways in court and out, have made efforts to put the DTA process on hold so that all government agencies involved could focus on the habeas cases. After detainees’ lawyers refused to go along, the Department hardened its position, and now will not supply any information demanded by detainees’ counsel for use in the DTA process. (A Department lawyer outlined that view in this document.) This has set up a tug-of-war in the Circuit Court, and it is not clear when the Circuit Court will try to sort it out.
Meanwhile, on Friday, in a series of filings in District Court, the Justice Department told Senior Judge Thomas F. Hogan that the government was unable to meet a Friday deadline for producing 50 responses to detainees’ habeas challenges. That was a schedule Department lawyers suggested, and Judge Hogan then embraced.
It is just too much of a chore, the Department’s filings asserted, to get the classified information that will go into those reports cleared by the Central Intelligence Agency in rapid order. The Department asked for another 30 days to complete the filing of the first 50 — 22 have been filed so far — and said officials hoped then to be able to get back on a schedule of filing 50 such reports each month until some 250 are completed. The Department’s main fling on this issue can be found here; attachments — including a statement by CIA Director Michael V. Hayden — are here, here and here.
 The Justice Department, in its multi-faceted efforts to get free of the Circuit Court’s DTA review — at least in the form mandated by that Court, has contended that its formal request that all of those cases be held in abeyance means that the government has not duty in the meantime to supply what is required — a legal claim that detainees’ lawyers dispute. For a time, Department lawyers also contended that the Supreme Court had shunted the DTA scheme aside, but then the Circuit Court, acting at the request of detainees’ counsel, reinstated it, indicating it was ready to move forward.
That has prompted talk of efforts within the Justice Department either to get the Circuit Court to reconsider, or else to go to the Supreme Court to try to get free of its DTA obligations as laid out by the Circuit Court in the 2007 decisions in Bismullah v. Gates.
If that does not work to shut down the process in its present form, the Department has said, the Pentagon may simply start all over, and summon new Combatant Status Review Tribunals to rule on whether individual detainees should continue to be confined as “enemy combatants.”
The Circuit Court has authorized such a reopening of CSRTs, if that is what the government prefers. That, from the perspective of detainees’ lawyers, would only stretch out the whole process of detention review. For their part, detainees’ counsel want to continue moving cases on both tracks — habeas in District Court, DTA in the Circuit Court.
The Justice Department’s hand is being forced somewhat on the DTA process, first by pleas from some detainees’ counsel to hold the Department in contempt for allegedly failing to provide required reports on what it has in its files about detainees, and by a new motion by other detainees’ lawyers to compel the government to turn over what it knows about seven detainees within ten days.
The Circuit Court, aside from reinstating the Bismullah rulings, has not indicated when it will act on the contempt motion and on the motion to compel delivery of information.
In the District Court, however, judges have been moving at an unusually rapid pace, in the face of many complexities on issues of law and procedure. Since starting the habeas review process July 1, District judges have issued scores of orders, and have held a variety of hearings, both in public and behind closed doors. Illustrating the pace, the main docket for those casses (08-442) now has 318 entires. The first actual hearing on a habeas challenge is scheduled for Oct. 6.
Under the habeas process, the detainees’ challenges were filed first — some of them more than six years ago. With the Supreme Court clarifying in the Boumediene decision that those cases could now proceed, the government then had a duty to respond, to file what are called “returns,” to which detainees’ lawyers would then respond.
It was the return-filing process that the Justice Department said on Friday was going slower than it had expected. The Department said it deeply regretted that officials “have been unable to complete the initial set of [50] factual reports in the time-frame originally anticipated.” It apologized, and said it needed another month to do so.
The filings made clear that the Department was responding first in habeas cases pending before two judge — Richard J. Leon and Emmet G. Sullivan — who have decided to process all of their cases along, without sending them to Judge Hogan first for coordination. Of the 22 returns filed up through Friday, the first eight were filed before Friday either with Leon or Sullivan, then 10 were filed with Judge Hogan Friday and four more with Sullivan.
In a lengthy description of what the government was doing to try to process the habeas cases to get them ready for court, the filings put the main focus on the delays in the CIA task of clearing the classified information in the returns. “The task [of filing] have proven even more difficult than originally envisioned,” the main document said, “because of the pervasiveness of classified information thr0ughout the relevant records and the need for classified information in presenting the government’s case.”
Once a draft return is prepared, the document said, it may take the CIA up to 30 days to review the secrets involved. CIA Director Hayden said in his statement that he had told “my senior managers that meeting the Court’s schedule is a top priority of the CIA.”
Hayden commented: “I recognize that the Court ha snot ordered any classified information to be publicly disclosed. Nevertheless, exceptionally grave damage to the national security reasonably could be expected to result if the CIA’s deliberative review process for the disclosure of classified information is not followed during the habeas litigation.”
The CIA chief said his agency did nto receive the first draft o the government’s habeas returns until Aug. 12, and got the last batch as recently as last Monday.  From here on, Hayden added, the agency expected to be able to complete its reviewof a return within 30 days after getting a draft of it.
