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DOJ Seeks Lawyers for Guantanamo Cases
Justice says 50 needed to deal with 250 habeas cases
Legal Times
July 07, 2008
At the time of the Supreme Court's landmark decision in Boumediene v. Bush three weeks ago, the Justice Department had four lawyers devoted to handling about 250 Guantanamo Bay habeas cases.
Now that the high court has cleared the way for detainees to challenge their captivity in the U.S. District Court for the District of Columbia, Justice is trying to fatten its team to 50 lawyers -- half of whom would be assigned to clean up or augment the government's evidence.
In a June 30 letter to Chief Judge Royce Lamberth outlining the Justice Department's positions on how the habeas cases should proceed, Acting Assistant Attorney General Gregory Katsas said 20 of the lawyers would come from inside the Civil Division and 30 from outside. "We are actively working to identify those attorneys and get them in place as quickly as possible," he told the judge.
The letter was attached to a memo Lamberth sent to the D.C. Circuit last week, asking the court to decide several Guantanamo-related cases that raise issues the district judges may confront in the habeas litigation.
Katsas' letter was sent on the same day that the D.C. Circuit unclassified portions of a decision that criticized the quality of the government's evidence in a detainee case. The letter is the first acknowledgment by the Justice Department that factual returns -- the summaries of the government's allegations and evidence in support of holding the detainees -- may not pass muster in federal court.
The letter is silent on where the 30 outside lawyers will come from, but it states plainly why they are needed: The 100 factual returns already filed in the habeas cases require shoring up, and the Justice Department needs lawyers to produce at least 100 more returns for the remaining cases. The Justice Department's plan to amend the evidence in the habeas cases was first reported by the Associated Press.
HELP WANTED
Justice Department representatives and lawyers for detainees met behind closed doors with Lamberth twice last month to discuss how to move forward with the litigation. In the latest meeting, on June 25, Katsas said about 25 lawyers would be dedicated to reconstructing the old returns and assembling new ones, according to two sources who attended.
Katsas estimated that it would take the department four to five months to finish the returns, and he requested two months' lead time to recruit the lawyers and get them security clearances, the sources say.
Deputy Attorney General Mark Filip is in charge of finding lawyers outside the Civil Division to work on the habeas cases. Last week, he notified the 93 U.S. Attorney Offices nationwide, soliciting volunteers.
The Justice Department declined to say how many responses it had received. "We're continuing to gather the attorneys needed to litigate the habeas corpus cases," spokesman Erik Ablin says.
Last year, news surfaced of dissent among the ranks of the 56-lawyer Civil Appellate Division, which argues against detainee appeals filed under the Detainee Treatment Act. U.S. News & World Report reported that up to one-fourth of the staff refused to work the cases. A former Justice official said in an interview with Legal Times that the department adheres to an informal practice of allowing Civil Division lawyers to opt out of cases for personal or philosophical reasons.
The former Justice official says outsourcing the Civil Division's work is not new. "Surges [in workload] happen from time to time," says the former official, who asked not to be named. "I wouldn't say it's not uncommon, but it's not unprecedented."
Between 2002 and 2003, the division recruited several attorneys from outside Main Justice to help the division's Office of Immigration Litigation cope with tens of thousands of immigration appeals piled up in circuit courts. The former DOJ official says the division went so far as to enlist attorneys from the Federal Deposit Insurance Corp.
Last month, the U.S. Court of Appeals for the D.C. Circuit impugned the government's evidence against a Muslim from Western China in the first merits review of a Detainee Treatment Act appeal. The law gives the appeals court limited review of the Pentagon's initial determination of whether a detainee can be held as an enemy combatant.
The court found that evidence provided at the 2004 Pentagon hearing in the case of Huzaifa Parhat, who has been imprisoned at Guantanamo for six years, relied on "bare assertions" and could not be verified. The court ordered the Pentagon to either release Parhat, transfer him to another country, or convene a new review with stronger evidence. The D.C. Circuit issued its ruling on June 20. Unclassified parts of the opinion, by Judge Merrick Garland, were released last week.
While the Detainee Treatment Act cases run separate to the habeas cases, detainee lawyers say the Parhat ruling cast doubt on the authority of hundreds of intelligence documents and records the government has held up as proof of detainees' threat.
"It seems bizarre that the Justice Department needs to throw a whole bunch of new lawyers at explaining at the most basic level why these people are in prison," says Susan Baker Manning, a partner at Bingham McCutchen representing Parhat.
Katsas spoke of "concerns" raised by Parhat in his letter to Lamberth, and he acknowledged that the "development of these factual returns will be highly time-consuming for the Department of Justice, the Department of Defense, and any affected intelligence agencies."
The CIA is "dedicating significant resources to the process," says CIA spokesman Paul Gimigliano. "The agency is cooperating fully to ensure that the habeas proceedings will be conducted in a fair, effective way that protects sensitive intelligence sources and methods."
Lawyers for the detainees counter that the department has had six years to build its cases. They are requesting that Justice immediately produce the returns in the cases in which none have been filed, and they oppose allowing the government more time to gird the existing returns.
"They're just going to put new stuff in and take old stuff out, and at that point the [Combat Status Review Tribunal] record becomes meaningless because there is no more record," says David Remes, a partner at Covington & Burling who represents several detainees.
Katsas wrote that the Justice Department is "entitled to place before the court the best and most recent evidence" in the habeas cases.
Last week, the court appointed Senior Judge Thomas Hogan to coordinate procedural issues common to many of the habeas cases. In the first hearing since the Supreme Court handed down Boumediene, Hogan is expected to rule on the schedule and sequencing of the cases. At that hearing, scheduled for Tuesday, both parties are likely to raise the issue of factual returns.
Says Charles Carpenter, a Pepper Hamilton partner representing detainees: "All we can do is ask for the returns as quickly as the courts can order them."
