Federal Judiciary

No punishment for U.S. delay on detainees

By Akin Gump Supreme Court Practice Group

The federal judge overseeing some 200 detainees’ cases on Friday gave the government added time to supply its reasons for holding the prisoners and refused to impose any punishment for delays up to now, but warned that his patience may be growing thin.  At the same time, however, he gave an implied endorsement of a major new role for the Central Intelligence Agency — a role that, according to the Justice Department, is the major factor in slowing down the official responses.

Senior U.S. District Judge Thomas F. Hogan stretched out by 30 days the first deadline for the Justice Department to file its initial “returns” – the technical name for its justifications of detention.  The first 50 such returns are now due by Sept. 30, a month later, and 50 more will be due each month until all have been filed.  The judge’s order is here, and his opinion explaining that order is here.

The Justice Department, with apologies, had asked for the 30-day extension of filing time, saying the task of assembling the returns was bigger than it had thought it would be – especially since the CIA is performing a central role in examining the draft returns to see if government secrets might get out.   Judge Hogan had set the schedule that the government proposed, but just before that deadline was up, it asked for the added month.

Detainees’ lawyers countered with requests to Judge Hogan to refuse even to consider the extension request, to deny it, or, perhaps, to begin imposing some punishment in order to deter the possibility of further delays.

Judge Hogan, while saying he was “disappointed” in the failure to meet that deadline, added that, “at this juncture,” he was “not convinced that the scope and nature of the sanctions [detainees] propose are warranted to ensure that the government will meets its future obligations…”

The judge went on to say he was not just setting a “goal” that the government would “strive” to meet — words that he took from the government’s plea for more time.  The 50-a-month schedule must be met from now on, he said, and cautioned that he “will not tolerate any further delay.”

Several parts of the judge’s opinion indicated that he had focused on a still-secret memo filed by CIA Director Michael Hayden on the need to proceed carefully so as not to risk disclosures of secrets about how the government obtained information about detainees.  It was clear, in the context of the order, that the judge was accepting the key role that CIA was now playing, and was deferring to it.

The Justice Department has made a similar request for more time to file returns in the two dozen cases being handled by a different District judge, Judge Richard J. Leon.  That judge had several times told Justice Department lawyers that, if the process was slowed down, he would summon government officials to his courtroom to explain in person.

Full post as published by SCOTUSBLOG on September 19, 2008 (boomark / email).