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Univ. of San Diego School of Law

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Monday, September 1, 2008

New DTA, habeas troubles

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. [Mark Godsey]

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