The Justice Department last night requested more time to prepare evidence for Guantánamo Bay detainee cases in federal court, despite efforts of more than a hundred CIA, Defense Department and Justice Department lawyers to meet a court-ordered deadline. The evidence, called "factual returns," supports the government’s case for continued detention, drawing on classified intelligence largely collected by the CIA.
Senior U.S. District Judge Thomas Hogan, who is coordinating most of the Guantánamo Bay cases, had ordered the government to file factual returns in 50 of the approximately 250 cases by Aug. 29. The government managed 22 returns, according to a motion for relief filed last night in U.S. District Court for the District of Columbia.
Assistant Attorney General Gregory Katsas, head of the Justice Department’s Civil Division, said the department “simply did not appreciate the full extent of the challenges posed by the extensive need for classified information in these cases when they proposed to complete the first set of factual returns by the end of August.” He asked Hogan to allow the department to file the first 50 returns by the end of September, and 50 more each month hence.
The secure facility in Northern Virginia, where classified documents are stored and available for review, is keeping unusually late hours this weekend, detainee lawyers say.
Creating the returns is an onerous task, Katsas said. Lawyers spend “dozens of hours” collecting and analyzing information about the detainees. They then draft the returns and send them to the CIA for review, which takes about 30 days. Broadly, the records used in the returns draw from three categories: foreign government information; foreign relations and foreign activities of the United States; and intelligence methods, sources and activities.
The motion, accompanied by declarations from the Defense Department, DOJ and the CIA, says that law enforcement and intelligence agencies were unprepared for the Supreme Court’s June decision in Boumediene v. Bush, which recognized the detainees’ right to challenge their captivity in federal court.
Katsas, in his declaration, said the Justice Department secured a supplemental appropriation to fund the litigation before Boumediene came down, but the Civil Division didn’t know whether to dig in for hundreds of appellate proceedings in the U.S. Court of Appeals for the D.C. Circuit, which would be handled by the appellate staff, or hundreds of habeas proceedings in district court, which would be supervised and primarily handed by the Federal Programs Branch.
The Justice Department has found 50 lawyers to work on the cases, about 40 of whom have obtained the security clearances required to handle classified information. The Federal Programs Branch contributed 10 lawyers, and 10 more arrived from other branches in the civil division. The rest are detailed from U.S. attorney’s offices and other divisions. Katsas said the effort was unprecedented in his seven years at the Civil Division and the Office of the Associate Attorney General.
“I am unaware of any litigation matter in which an assistant attorney general requested so many additional resources from outside his or her division,” he said.
More than 50 CIA attorneys, paralegals, subject matter experts and classification experts are involved in the habeas cases, CIA Director Michael Hayden said in the declaration. And the Defense Department has 30 attorneys working on the litigation, including about 20 who were plucked from other offices within DOD, Acting General Counsel Daniel Dell’Orto noted sourly.
“Their offices have redistributed these attorneys’ work to other attorneys within the office, at a time when each office is supporting a DOD organization or component engaged in DOD’s war mission,” Dell’Orto said.