In this week’s issue, we wrote about the Justice Department’s plan to cobble together a team of 50 attorneys to patch up evidence in the Gitmo habeas cases.
It looks like that's going to be a lot harder than Justice officials had hoped.
In the first hearing since the Supreme Court granted detainees the right to challenge their captivity, Senior U.S. District Judge Thomas Hogan said the Justice Department must explain, in each habeas case, why it needs to shore up evidence it had defended steadfastly until two weeks ago. And Hogan ordered the government to move quickly in organizing the evidence, saying at one point that Justice Department should set aside its other cases and focus on the habeas litigation.
The Justice Department has filed factual returns—which at present amount to the classified record of the detainees’ Combat Status Review Tribunals—in 100 of the approximately 200 habeas cases. Assistant Attorney General Gregory Katsas, who argued before Hogan at the hearing, asked for two months to recruit lawyers, and at least another two months to amend the existing returns and file 100 new ones. Katsas said the effort would strain the Justice Department's resources "almost to the breaking point."
But Hogan said he wanted the returns filed sooner, reminding the government of the language the Supreme Court used in Boumediene v. Bush: "[T]he cost of delay can no longer be borne by those who are held in custody."
The Justice Department had hoped to avoid arguing motions for leave to file amended returns, but Hogan, who is coordinating the habeas litigation, said he had misgivings about granting the government "carte blanche" to augment its evidence "without saying why." It’s still unclear when and in what order the Justice Department will have to file the returns. Hogan said that he was leaning towards a “first-in, first-out” arrangement, where the detainee cases pending the longest would be given priority. He said he would issue a scheduling order by the end of the week.
The hearing today, held in the ceremonial courtroom in the U.S. District Court for the District of Columbia, was packed with more than 120 habeas counsel. Another 20 or so listened in via teleconference. Katsas appeared alongside Judry Subar, the head of the Justice Department’s federal programs branch. Habeas counsel designated Shayana Kadidal and Gitanjali Gutierrez, both of the Center for Constitutional Rights, to appear on their behalf.
Subar said today that 54 of the approximately 270 prisoners at Guantanamo Bay were cleared for release. The government has run into trouble finding homes for them.
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