Opinion
Civil Action No. 05-0520 (RMU), Document No. 15.
April 7, 2005
MEMORANDUM ORDER
GRANTING MOTION TO COMPEL; ORDERING THE RESPONDENTS TO FILE FACTUAL RETURNS
This matter comes before the court on the petitioners' motion to compel. The petitioners request that the court order the government to produce factual returns justifying the ongoing detention of the petitioners at the United States Naval Station at Guantanamo Bay, Cuba ("GTMO"). If, as in this case, the court orders the respondent to show cause in response to a habeas petition, "[t]he person to whom the . . . order is directed shall make a return certifying the true cause of the detention." 28 U.S.C. § 2243 (emphasis added).
The court issued a show cause order on March 22, 2005. Order (Mar. 22, 2005). The government purports to answer that show cause order in its motion to stay. Defs.' Mot. to Stay at 9 n. 5 (noting that, "[b]y the filing of this motion . . . respondents have complied with [the show cause order]") (citing Habeas Rule 4). Because the court would rather focus its attention on the merits of these cases than disciplining the government's lawyers and explaining the obvious — for example, that a footnote in a motion to stay does not show "cause" in response to a show cause order — the court simply notes at this juncture that the Habeas Rule the government (mis)quotes, id. (quoting the Rule as requiring the respondents to submit "an answer or other pleading"), when read in context, ultimately requires the government to respond to what the court orders; the rule does not give the government discretion to proceed as it has thus far. Habeas Rule 4 (providing that "the judge must order the respondent to file an answer, motion, or other response within a fixed time, or to take other action the judge may order").
The government takes the position that
[i]t makes no sense for proceedings related to the merits of these cases, such as the submission of factual returns in response to orders to show cause regarding the issuance of habeas writs, to go forward when decision from the D.C. Circuit on the related Guantanamo detainee appeals, which are proceeding in an expedited fashion, will determine the legal analyses applicable to the cases and, indeed, whether and how these cases should proceed.
Defs.' Mot. to Stay at 9. Furthermore, the government argues that requiring submission of factual returns "burdens the government's resources and risks the inadvertent disclosure of classified information." Id. at 11.
The fact that the D.C. Circuit has not yet issued its decision in the related appeals (or that this case is stayed pending the D.C. Circuit's decision on those appeals) does not prevent the government from processing the returns. On the contrary, the court determines that petitioners' counsel should be able to review the returns now so that they can develop their case and prepare for any consultation with their clients. As to the government's concerns regarding classified information, the protective order entered in this case will guard against any such inadvertent disclosures. Finally, the government's generic references to the expenditure of its resources and a "logistical burden," id. at 13, does not persuade the court to delay ordering the returns; the court is confident that the government can handle this task.
Accordingly, it is this 7th day of April, 2005,
ORDERED that the petitioner's motion to compel is GRANTED; and it is
FURTHER ORDERED that the respondents shall file factual returns regarding the petitioners within 45 days of this order.
SO ORDERED.