Federal Judiciary

Rules set for 113 detainee cases

By Akin Gump Supreme Court Practice Group

The U.S. District judge who is coordinating scores of Guantanamo Bay detainees’ challenges to continued captivity outlined for the first time on Thursday the ground rules that will govern those cases. Saying he was acting to give the prisoners “prompt habeas corpus review,” Senior Judge Thomas F. Hogan released a “case management order” that he had had under study since late July.  It will apply to 113 cases.  It can be found here.

Those cases have been shifted to Judge Hogan solely to work out scheduling and procedural matters, and will ultimately be decided, on the merits, by other District judges in whose courts those cases were filed.  With Thursday’s order, at least some of those cases may begin to return to the “merits judge.”  Hogan’s order left those judges with what appears to be considerably discretion to modify his ground rules.

In broad outlines, as well as in key specifics, the Hogan order closely parallels one that U.S. District Judge Richard J. Leon issued on Aug. 27.  Judge Leon is one of two judges who have refused to send their cases to Hogan for coordination; Leon actually began hearing the merits of the first of 24 Guantanamo cases on his docket on Thursday morning.  His habeas docket is moving more rapidly than any other judge’s.

Hogan, like Leon, decided that the Pentagon and Justice Department could justify continued detention of prisoners by “a preponderance of the evidence” — the lowest level of burden of proof.  The Supreme Court, in the Boumediene v. Bush decision in June recognizing a constitutional right of habeas for detainees, had left that issue to the District judges in the first instance.

Like Leon, Hogan specified that, if the government plans to justify detention by showing that the Pentagon has designated a given individual as an “enemy combatant,” it must define what it means by that phrase.  (Judge Leon has since adopted the Pentagon’s 2004 definition of the term, which is slightly less expansive than the government’s proposed definition.)

The Hogan order appears to be somewhat more favorable to detainees’ lawyers in their opportunity to compel the government to turn over materials in addition to what it submits in its initial justifications (technically, “factual returns”).

The Hogan and Leon orders are parallel on the scope of the government’s duty to turn over to detainees’ lawyers information that it has in its possession that could aid the detainees’ challenge.

Both orders allow the judge to apply a “presumption of accuracy and authenticity” for the government’s evidence against a detainee.  And both allow either side to offer “hearsay” evidence — evidence supplied without the witness being present.

Neither judge allows a detainee to be present in court for his merits proceeding, but does allow them to have telephonic access to at least the non-classified parts of any such hearing.

Full post as published by SCOTUSBLOG on November 06, 2008 (boomark / email).