From Scotus Blog
The federal judge coordinating 114 habeas cases, involving some 200 Guantanamo Bay detainees, on Friday lifted temporarily the timelines he had laid down for key filings by one or both sides, effectively delaying most if not all of those cases. The order by Senior U.S. District Judge Thomas F. Hogan imposing a stay on seven provisions of his “case management order” can be found here.
The stay will remain in effect, the judge indicated, until he rules on a broad challenge to the procedural framework he has crafted for the cases. The Justice Department wants many of the provisions relaxed or at least modified, or, as an alternative, it wants permission to pursue an immediate appeal to test those provisions in the D.C. Circuit Court.
Two things about the order are unclear: first, how long the delays will be, since the judge has given no indication of when he will rule on the government protest, and, second, whether other District judges who have adopted his management order as is or with alterations will issue similar stays for the cases that are assigned to them. Those judges have reclaimed for action some of the 114 cases listed in Judge Hogan’s order. (UPDATE: Later Friday, other judges began following Hogan’s lead on the stay question; see, for example, this order by Judge Reggie B. Walton.)
The government, while making its challenge to Hogan, contended that the timelines the judge had established “would impose many simultaneous and inappropriate burdens regarding the handling of sensitive classified intelligence upon the Government.”
While agreeing to the stay, Judge Hogan said that the two sides should not view his stay of the due dates “as license to halt all efforts to prepare the materials necessary” to comply with his order, once he has ruled upon the challenge.
Although the order spoke only of staying “the due dates imposed” by seven parts of his order, one of the seven did not include a due date. Thus, the stay appeared to delay one key procedural feature of his order. (The Justice Department had not asked only for a stay of due dates or timelines, but of all “obligations” imposed by the seven provisions. The judge’s order did not go that far; in fact, the order indicated that the “obligations” he was imposing remained and he expected the parties to be ready to meet them after he ruled on the challenge.)
These are the due-date provisions that the judge stayed:
(1) 14 days from his Nov. 6 order — that is, until Nov. 20 — to file unclassified versions of the government’s reasons for holding detainees
(2) 14 days — until Nov. 20 – to file evidence the government has that might aid the detainees’ challenge to detention
(3) 14 days after a request from detainees’ counsel to hand over supporting documents behind its evidence, plus information on how those materials were gathered
(4) the due dates in items (2) and (3) are stayed also for the government’s duty to hand over substitutes for any classified information that would be included in the disclosures under (2) and (3)
(5) 7 days before briefs on the merits are due to file requests for admitting hearsay evidence
(6) 14 days after detainees’ lawyers respond in writing to the government’s factual evidence to file simultaneous briefs by each side on the merits
The one provision that does not have a timeline or due date, but also was stayed, would grant the government a “rebuttal presumption” of accuracy and authenticity for its evidence, if that is necessary to ease aundue burden on the government in any habeas case.