Many rejoiced when the day after Obama took office when he issed presidential orders closing the prison at Guantanamo Bay, and ordering the swift disposition of all pending habeas corpus motions from detainees there. In fact, I think that may have actually been the subject of my very first substantive post on this blog. In order to facilitate the closing of Gitmo and the disposition of the habeas challenges, Obama appointed the Guantanamo Review Task Force which is a compilation of representatives from several executive branch agencies. At the same time of course, the D.C. District Court was hearing habeas cases and has since set up a system to manage all of the pending habeas cases in that court. Now there could be a potential storm brewing between the Task Force and the court system because of discovery orders issued by the court. In a May 12th filing, government attorneys explained to the court that the extensive discovery required by these orders would overwhelm Task Force resources and cause them to fail to meet their deadline of January 2010 that was set for them by President Obama.
I'm not going to get into the minutiae of the 35-page memo (however, I suggest that if you read it you have some sort of encyclopedia of government agency acronyms at hand because just about every sentence contains at least 76 (exagerration) government acronyms in it), but I'll highlight what the government is asking for. The government basically says that discovery orders issued by some judges require the Task Force to go through its entire database of information on the detainees. This exhaustive search would take 4-12 months and the government says that such a search is not really necessary because a great deal of information is availiable to the detainees already without having to cull the entire database. The solution, says the government, is to either 1) allow detainees to proceed without discovery; or 2) allow them to proceed with the limited discovery that will include information that the Task Force has compiled or is compiling. I could flesh out the rest of what the government says, but I will not because it will involve me speculating a lot about this process which I admittedly don't completely understand. The point I really want to make in this post is that this could be the beginning of a major battle between the Executive and the Judiciary. The prime excerpt that illustrates what I mean is this (this language is actually repeated several more times throughout the memo):
"Accordingly, the imposition of litigation deadlines that supersede the diplomatic timetable around which the Task Force's reviews are scheduled could severly compromise the prospects for success of its efforts, in derogation of the President's authority in the realm of national security and foreign affairs."
Uh-oh. I've had my J.D. for about 5 days now so I feel comfortable in telling you that I think that language alludes to something called the "political question doctrine." For those of you who don't know what that is it is a legal concept that says that a court should stay out of a situation that falls within the purview of the political branches. In this case you have government lawyers saying that burdensome discovery orders from the courts will adversely affect national security and foreign policy which are traditionally thought to be within the realm of the political branches. There is no outright statement here that the court's actions will trample on a question that is actually a political one, but I think that the underlying threat is that if the court insists on following through with these comprehensive discovery orders then the Executive is going to fight them on it.
I've got to say that I find this to be a very strange situation. The reality is that the court system has been on the case of trying to give these detainees rights for far longer than the Executive. Granted we have a new Executive that appears to be interested in clearing up this mess and setting things right, but the court system has still been working very hard for quite awhile now to get a handle on the rights, specifically habeas rights, that should extend to the detainees. Obama's presidential order that began rolling up Gitmo and trying to find out what to do with the detainees is the kind of strong, decisive mood we've been looking for from the Executive, but that move is now interfering with the judiciary's duty to see these habeas cases through. The memo argues that the Task Force will alleviate a lot of the burden of the pending habeas cases by granting transfer, release, or prosecution for many of the detainees. I agree with that, and while that sounds great, I think that we still don't know exactly how all the Task Force's mission is going to play out and the court still has a duty to fairly and expeditiously (I emphasize the word "fairly" because I think that the Task Force is concerned with the speed of this process above all else) proceed with the pending habeas cases and that duty may be hampered by the Task Force's mission. I hope that this does not turn into a showdown between the Executive and the Judiciary because it will just further delay giving the basic rights that are due to the Gitmo detainees.