This is a confusing news item - or is it that DOJ and its bosses simply do not know what to do. I expect there is some political spin here; but it may indicate that the DOJ system is broken. Draw your own conclusions. Next week will bring some more developments - one can fairly infer.

New DTA, habeas troubles
Friday, August 29th, 2008 10:36 pm | Lyle Denniston.....
.....
The Justice Department, frustrated in its ability to get free of one level of court review of Guantanamo Bay detainee cases, and unable at the other level to keep to is own schedule for turning out reports to justify detention, has taken two significant steps to try to cope. It has vowed to shut down its part in the D.C. Circuit Court’s review of detainee challenges under the Detainee Treatment Act of 2005, and it has formally asked for more time to file in District Court its answers to challenges pending there under the Supreme Court’s Boumediene v. Bush decision.

These developments emerged as top Justice Department officials, joined by Pentagon and intelligence officials, vowed Friday to continue to try to help the courts process some 250 District Court habeas cases that federal judges have insisted on resolving as soon as possible. Officials have made it clear that they consider those cases to have the most claim on the government’s time and resources, and equally clear that they will do no more than they are actually compelled to do on the DTA cases in the Circuit Court.

The Supreme Court, in Boumediene, stressed the importance of moving rapidly with the long-pending habeas cases, and said the detainees did not have to attempt first to ge the Circuit Court to act on their DTA appeals. But the Court also said that the DTA process would remain “intact” and it did not prevent detainees’ lawyers from pursuing that routine, if they chose — as a number have now done.
....
Justice Department lawyers, in a variety of ways in court and out, have made efforts to put the DTA process on hold so that all government agencies involved could focus on the habeas cases. After detainees’ lawyers refused to go along, the Department hardened its position, and now will not supply any information demanded by detainees’ counsel for use in the DTA process. (A Department lawyer outlined that view in this document.) This has set up a tug-of-war in the Circuit Court, and it is not clear when the Circuit Court will try to sort it out.
.....
Meanwhile, on Friday, in a series of filings in District Court, the Justice Department told Senior Judge Thomas F. Hogan that the government was unable to meet a Friday deadline for producing 50 responses to detainees’ habeas challenges. That was a schedule Department lawyers suggested, and Judge Hogan then embraced. ....
http://www.scotusblog.com/wp/new-dta-habeas-troubles/

The bottom line government position is this:

We will not be providing any further record materials at this time. As you know, our motion to hold the entire DTA case in abeyance (including any obligation to produce any record material) is still pending. The pendency of that motion stays any obligation to provide any record material to you. Moreover, we are examining whether to seek further review of the panel's ruling in Bismullah and may seek to overturn the latest order.

Finally, I would note that, under Bismullah II, the record at issue is the historic "government information" actually reviewed by the recorder. The Bismullah II Court recognized that, for good reason, the government may not be able to identify those materials. See Bismullah v. Gates, 503 F.3d 137, 141 (D.C. Cir. 2007) (quoting the Government filing, "[a]t the time, Recorders had no reason to believe that DoD would be required to produce (or explain post hoc) what was not provided to the Tribunal"); ibid. ("We note in the Government's defense that CSRTs made hundreds of status determinations, including those under review in the present cases * * * without knowing * * * the scope and nature of judicial review"). Accordingly, the panel expressly held that the Government could elect not to file the record at all and instead remand the case to the agency. Ibid. Our prior court filings explain that the Government may pursue the remand option if the Bismullah decision is not overturned.

Given all of these factors, we will not be providing you the "government information" or any further record material at this time.
The above document is mentioned in the 2nd to the last paragraph of Lyle's article above.

Various other government position papers are here.

http://www.scotusblog.com/wp/wp-cont...ef-8-29-08.pdf
http://www.scotusblog.com/wp/wp-cont...ns-8-29-08.pdf
http://www.scotusblog.com/wp/wp-cont...cl-8-29-08.pdf
http://www.scotusblog.com/wp/wp-cont...cl-8-29-08.pdf

from Gen. Hayden's declaration
19. The CIA did not receive the first draft factual returns [from DOJ] until 12 August 2008, and received the last batch of factual returns [from DOJ] as recently as 25 August 2008. Nevertheless, the CIA managed to complete its review of a significant number of returns by the 29 August 2008 deadline.
(IMO) The only people who are looking good here are some of the judges who took the bull by the horns and did what they are paid to do - military judge Allred and Federal judge Leon being two examples, in my book.