Lawfare Daily: Katherine Pompilio on Tracking Government Non-Compliance in Habeas Corpus Cases

[Intro]

Katherine Pompilio: What we are really trying to do is establish first that pattern that, yes, this is a bigger issue than just, you know, a one-off violation in one case in Minnesota, or even just a Minnesota problem, even just a New Jersey problem. We have, I believe, 20 jurisdictions now that we've added to the tracker, and we're looking at adding more.

But this is a widespread countrywide issue.

Molly Roberts: It's the Lawfare Podcast. I'm Molly Roberts, a senior editor at Lawfare here with Katherine Pompilio, associate editor at Lawfare.

Katherine Pompilio: This is not just failure to file issues. These are, you know, it's a pattern that includes deporting people and violation of orders, failing to free people that the courts have ordered to be released, failing to return people's property and then moving them out of state to a different jurisdiction in violation of, again, a court's order.

Molly Roberts: Today, we are talking all things habeas non-compliance.

[Main Podcast]

So Katherine, last week, you and Benjamin Wittes published a piece called “Three Hundred Habeas Cases in Which the Government Has Defied Court Orders.” So tell me a little bit about what this project is exactly and how it came about.

Katherine Pompilio: Yeah, so the project is, like what says in the title, we are trying to count and collect all of the instances of non-compliance in habeas corpus cases in immigration proceedings. So issues of non-compliance look like anything from failure to file, to failure to provide a bond hearing, to even deportation despite an order against removal.

The project came about because a few, I guess months ago, I will, I'll say weeks ago, Judge Schiltz in Minnesota released a list—I think the initial list was somewhere around 60 to 70 cases of instances—in which the government had failed to comply with court orders in Minnesota. And I saw that and obviously thought, Hey, that's pretty bad.

So I wanted to just kind of start keeping track of if any other judges were releasing lists of this, some kind. And then a few weeks after that, I believe a judge in New Jersey ordered the Justice Department to produce a list of their own violations of court orders. And that list produced around, I'm gonna say 53 cases.

So I added that to a spreadsheet. And I thought I'll just keep keeping track of this just for personal use as I see them come up because this seems to be a broader problem than, you know, just Minnesota or just New Jersey. 'cause I had seen, you know, Kyle Cheney from Politico or you know, Lawfare’s Roger Parloff flagging online, other instances of non-compliance, kind of one-off, one here, one there.

And I thought it would be really great to be able to kind of see this entire picture and then it has just kind of snowballed from there. So yeah, that's how we got started.

Molly Roberts: So it seems like a pretty heavy lift and also somewhat reliant on having seen a news story or a judge assembling a list of his or her own.

But that's not exactly how you guys ended up doing this, right? You kind of figured out another way to get even more cases than we previously would've known about.

Katherine Pompilio: Yeah, I was keeping track of them manually, which took a lot of time. And also there was just no way to know individually about, without somebody flagging it online or a judge flagging it in a case about whether or not there was an issue of non-compliance.

So I teamed up with Ben to create a program using Anthropic’s Claude to basically search and scrape every habeas corpus docket in the country, over the last few months, mostly. But we've started looking back now to the beginning of the second Trump administration, but we've gotten Claude to scrape these dockets and flag for us cases in which there are potential non-compliance issues.

The way that Claude does that is it doesn't have access to individual filings within the dockets that's behind a PACER paywall. And even if some are available on Court Listener or publicly available, Claude still I don't think had the access to individual documents.

So it was just reading dockets. So that would be either like orders to show cause or minute orders that were available on the docket and then it dumped every single case that it thought there might be an issue with into a giant spreadsheet, which we have one called the Mega List, and that one should have been called the Mega Mega list. That was about 25,000 cases.

And then from there we were able to individually and manually using humans, including ourselves, individually and manually go through each one of those cases and look at where Claude had flagged issues of noncompliance and then verify whether or not that was an actual issue of noncompliance or not.

Claude is, I don't want to, you know, rag on Claude because it has been super, super helpful, but Claude is not, as of now, not the best legal analyst, so it would get pretty confused.

Molly Roberts: That's comforting though, right?

Katherine Pompilio: Right. Absolutely comforting. It's not the best legal analyst, so it would get confused about what a violation of a court order was versus, or just like an annoyed judge.

There were some cases thrown in there, like I remember there was a criminal case in Guam that was not even a habeas case that was somehow thrown in there. So it's not perfect and, of the cases that we've added to the tracker and that we are continuing to add to the tracker that we've published on Lawfare, each case is reviewed by a person, and then at least two sets of eyes are on—two sets of human eyes are on the cases that we add to kind of then go ahead and add them and classify them by violation type, and severity.

Molly Roberts: Got it. Got it. So when you give Claude the dockets to look at, there's no risk of Claude hallucinating, right?

'cause he just has to look at material that you're giving him. He's not gonna make anything up from outside of that. I know. I'm calling him, he and I probably shouldn't do that.

Katherine Pompilio: No, I've, I've started referring to him as he too, privately so in, in my messages, my many messages to Ben about this project.

Molly Roberts: Oh, I'm doing it extremely publicly, but yeah, it's too late for me.

Katherine Pompilio: I can, it's okay. Yeah, we can, we can go for it. Yeah. No, Claude flags specific cases for us and then also includes a link to the court listener docket. So there are no cases that it's so far that I've seen, hasn't hallucinated any actual cases. It's just gotten confused about what counts as an issue of non-compliance and what doesn't.

And then we verify, you know, we, we always click on the link that to the Court Listener that Claude provides to check ourselves, dockets the docket. And even then we'll go in manually past Court Listener into PACER, just to check that, you know docket numbers are lining up and, and issues of non-compliance exist and that they're not just made up in Claude's mind.

Molly Roberts: So why is the distinction so important? You've mentioned it I think twice now, and you guys mentioned it in the piece too, that this isn't just examples of where the government behaved badly or annoyed a judge. And of course, we know there've been a lot of examples recently of the government annoying judges, but yeah—

Why is that distinction so important?

Katherine Pompilio: Yeah, so. We are keeping track of non-compliance. Full stop. I think our list would be a lot longer if we were keeping track of, if judges were annoyed. But the goal here is to establish a pattern or just a, a more comprehensive picture across the country of issues of non-compliance.

So while a judge can be annoyed, that's not a full stop violation of an order. And I think, you know, if judges take a look at the stuff that we've produced and the, and the, a fuller picture of all the violations across the country they might be more annoyed because this is clearly a pattern.

We're trying—What we are really trying to do is establish first that pattern that, yes, this is a bigger issue than just, you know, a one-off violation in one case in Minnesota, or even just a Minnesota problem, even just a New Jersey problem. We have, I believe, 20 jurisdictions now that we've added to the tracker, and we're looking at adding more.

But this is a widespread, countrywide issue and it's happening everywhere. And so we want to, you know, be sure that we're being fair to the government and just not knocking them for—We're not knocking them for just behaving badly. We're, we're knocking them for violating, you know, a judge's order.

I think at the beginning of the Trump administration there was a lot, or the second Trump administration especially, there was a lot of what ifs about, you know, what happens when, when they start violating court orders and I think this tracker, it shows, you know, we're here 300 times over and so far, you know, there's been nothing, no punishments, more than threats of civil contempt and civil contempt in certain cases.

Molly Roberts: Yeah, I wanted to ask about that. What does happen when the administration is non-compliant? The judge tells the government to do something. They don't do it. Then what?

And I mean maybe one way to talk about it would be, if you could kind of walk me through like what one of these cases might look like or has looked like from what initially the government didn't comply with what the judge told the government to do. What happened then? And yeah, just to get a little bit better of his sense of the repercussions, both for the government, if there are any, and for the person whose habeas rights were violated.

Katherine Pompilio: Yeah, so I'll start by walking through—The most common violation type that we've come across is a failure to file. So something will happen where, you know, a judge, and again, this is like the, in the simplest of terms, it gets a little bit more complicated in a lot of these cases, but a very straightforward violation that has happened often is somebody is detained by ICE. They're brought to a detention center. And they file a petition for a writ of habeas corpus. The judge then orders res the government to respond to that petition. In a lot of instances, I think most of our instances of failure to file violations, the government just will not file their response by the court's deadline.

And then as a result, the petitioner is released and it's kind of defaulted in their, in their favor. There are more egregious violations. There were certain cases, I believe it was J.B.C.O. v. Bondi in Minnesota. That was the case of six Venezuelan nationals who were arrested at gunpoint in their home by ICE agents without a warrant.

They were detained, and one of them was also a, a 12-year-old child who had asthma, who was detained without an inhaler. The judge had ordered them to return the detainees to Minnesota. The government didn't. They had a deadline to release the six Venezuela nationals from custody. The government still did not release them.

The judge ordered them to produce a warrant. They did not produce a warrant. And then the judge was so angry that in one of his orders he wrote, you know, the quote, the government has not made a single filing on the docket in the case, aside from a council's notice of appearance.

Yeah, pretty bad. But the broader trend of what we've noticed is that this is, this is kind of a one-off for the government just not answering whatsoever, but we've noticed that judges are overwhelmingly good at bringing the government into compliance eventually, so they'll threaten, you know, civil contempt or financial penalties that happened, and I believe it's New Jersey with Matthew Ishihara. He was held in civil contempt, but other than that, it's just been mere threats of civil contempt.

I have not seen any judges threatening criminal contempt. And then usually that kind of brings the government into compliance and they'll file whatever thing they needed to file, or they'll release the petitioner, even though they had been asked to release the petitioner. So, even though they are good at bringing the government into compliance, the government isn't facing really any big consequences other than these threats of civil sanctions.

On the flip side of that, the people who are the petitioners are facing really bad consequences because of government non-compliance, even in the simplest of cases where, you know, somebody was detained by ICE and they filed a petition and the government, you know, failed to file, so they were released on default.

They're still being held for hours longer than, you know, necessary or, or what is just because the government decided to detain them and then just didn't bother to file a response defending their decision to detain them. There are even more instances of issues of failure to return property. So there will be a little bit of a, a back-and-forth battle between, you know, the petitioners and the respondents about the writ for habeas corpus.

And then eventually the petitioner wins, the government's ordered to release the petitioner. And, you know, whether that happens or not on time is another issue. And another thing that has happened a lot that we have counted in our violations oftentimes. I think, actually, I can give you a number, 62 times on our tracker, the government has failed to return property to the petitioner.

So sometimes that is, you know, I, I saw one case yesterday where it was—They could not return a petitioner's gold chain, which is valuable, right? But you don't need a gold chain to, to live your life. There are other instances—

Molly Roberts: I dunno, I might,

Katherine Pompilio: I mean, yeah, maybe, which is still bad. Like they should, the government should not be keeping any property of, and they're losing a lot of property too.

But there are also instances in which, you know, the government is, is, has either lost or is holding onto work permits, driver's licenses, wallets. So these people are being released without, you know, things that they need to exist as a person in this country, a lot of these cases, a majority of them, 248 by my count now—I'm adding more to the tracker today, so by the time that this goes out, there will be more cases—But 248 of them are in Minnesota and it has just been winter. So a lot of these people were also released without coats.

There was one case, I'm forgetting the name. But there was one case where, you know, a petitioner was released without a coat, without, his driver's license, without his work permit, without a wallet into the cold, and he had to spend the night in a shelter because he couldn't get a hold of, he couldn't pay for anywhere to stay. He was taken to Minnesota and then moved to Texas, and he needed to get back to Minnesota and his lawyers put together and donated their flight miles to get him back to Minnesota.

So there's really serious consequences happening for these people who are being detained. And these are just the ones that we know about. There are likely so many more. I'll share one more story that really stuck with me, and this is mentioned in our piece. There was the case of it's Castaneda Mondragon v. Noem in Minnesota. That was just a simple failure—on, on paper, a simple failure to file issue, but that person was when they were detained, he alleged to hospital staff that he was beaten by and dragged by ICE agents. ICE agents alleged that he ran into a wall giving himself a head injury, and they were quoted saying “he got his shit rocked.” And then—

Molly Roberts: It’s so shameless. Go on.

Katherine Pompilio: It is so shameless. They said “he got his shit rocked” and then they brought him to a hospital because of his injuries.

He sustained the list, goes on like so many internal injuries and ICE refused to leave his bedside. Not in a fun, not in like a nice kind way while he was there, despite hospital staff asking that they leave, they shackled his feet together in the hospital bed and then eventually used four point restraints to detain him in the hospital bed.

As of Monday or Friday when I last looked it up, he was not able to, his injuries had gotten so bad that he was no longer able to speak. Then a judge ordered him released from detention, which in his case meant taking the restraints off from the hospital bed. And in that, in that case, right there was just, it was just a failure to file issue, which again, I say just in that, you know, it's still bad, but behind that one simple violation, you know, there's a person in a hospital bed. With life threatening injuries.

Molly Roberts: Right. It sounds so administrative, but what's actually happening is, yeah, could be life or death, certainly for this man. And certainly, I mean, even if it's not life or death, it's much lower quality of life, so, right. It's distressing.

So you mentioned 248 from Minnesota. And I know that the database is already bigger than the 300 that we were talking about last week and growing still, but that nonetheless is an awful lot in Minnesota. Why Minnesota? I mean, obviously Minnesota is somewhere we've heard a lot about ICE presence, but why so many habeas cases there in particular?

Katherine Pompilio: Yeah, so we're not 100% sure exactly the reasons why. Our best kind of inference is, one, we were given a really helpful lists, and this is kind of, you know, why I decided to start this project from Judge Schiltz in Minnesota of all of the instances that he knew about, of noncompliance. So, he identified 210 specific orders in 143 separate cases in which the government failed to comply with the court order.

So that gave us a lot. Minnesota is also the subject of the Trump administration's Operation Metro Surge. So I think the inference is just that there are, there's more ICE activity in Minnesota as compared to other states, and that's why there are more habeas petitions, but. You know, again, we're only working with the data so far that we found.

We know that ICE has also had a significant presence in Los Angeles, but we have not found nearly as many cases of government non-compliance in the Southern District of California. I'll also say that I think it's a bit of a testament to how worn out and overwhelmed the U.S. attorney's offices are in these jurisdictions, specifically within Minnesota.

There's just so much happening. There's been such a surge in habeas petitions since the beginning of the second Trump administration that I, I think it's a testament to how overwhelmed they are, and the more overwhelmed the U.S. attorneys are, the more likely they might be to make mistakes. So I just think that the Minnesota highlight is because of, there's just more activity happening there, the U.S. attorney's office is more overwhelmed and it's was, or has been the subject of a, a major DHS operation.

Molly Roberts: Right. No, that makes sense. And is there anywhere else, you said not really so much in the Los Angeles area. Is there anywhere else where you guys have noticed a concentration of cases?

Katherine Pompilio: Yeah, so again, the second biggest district that we have is the Sistrict of New Jersey with, right now it has, we've counted 61 violations, but again, 53 of those were admitted to by the Justice Department themselves. And in a lot of those 53 cases, or around 50 cases, you know, we've looked at those individual dockets that the government has admitted to making violations in and there is no mention of a violation on the cases’ specific docket.

So we would not, and I, and I think judges wouldn't have known about these violations if the government hadn't cop to them.

Molly Roberts: Huh.

Katherine Pompilio: So that's why in New Jersey specifically, we have such a high volume and it was easier for us to find without having, you know, Claude scrape the dockets there.

This third largest district we have is, or third largest compilation of violations we have is in the Eastern District of California, followed by the District of Massachusetts, and then the Eastern District of New York.

Molly Roberts: Huh. Okay. So you and Ben published an update to this just yesterday? Today?

Katherine Pompilio: Yesterday.

Molly Roberts: Yeah. Right. It's hard to keep up. I mean, I imagine you, I know, you know, continue to publish updates and or also the database will just be updated without a Situation column announcing it. But the conclusion in that piece was that the federal judiciary, itself should be keeping data on this subject.

And I guess my question is, why is it so important for them to do it? Not only because you have other things to do, but why else is it so important for them to do it? And yeah, I mean, along the same lines, why is this problem as a broader trend and why is a full understanding of just how broad that trend is something that judges should be aware of?

Katherine Pompilio: Right. I'll start with it this way. When you look at an individual violation, in an individual case, it's bad, but it doesn't seem that bad. Right?

And the government's excuse if they provide one, oh, it was a mistake. Oh, we didn't receive notice. Oh, you know, we, we meant to file it now, but we, we filed it an hour late and we're sorry, as a one-off is annoying. Like we said, judges are annoyed, but it's annoying, but whatever, it's, it's not that big of a deal. But when you take a step back and look now at the 362 violations that we've found so far, these individual cases put together, start to form a pattern.

Habeas cases are inherently individual situations, they're filed across dozens of districts, before hundreds of judges, who really never communicate with one another. And so each judge really only sees a fragment of a problem.

Stitching these 300 plus cases together is kind of what transforms a series of seemingly mundane, bureaucratic slipups into something that looks more like, I'm not accusing them of this yet, but you know, something that looks more like government policy.

A late filing is for a judge is a much bigger deal in the context of a broad pattern of the government's violation of court orders. And again, this is not just failure to file issues. These are, you know, it's a pattern that includes deporting people in violation of orders, failing to free people that the courts have ordered to be released, failing to return people's property and then moving them out of state to a different jurisdiction in violation of, again, a court's order.

And so the absence of institutional record keeping is itself an issue. Lawfare and Ben and I are working on it. And we're still, you know, trying to do as much as we can. But as of now, aside from what we have so far in this tracker, there's no coordinated publicly available database of habeas cases, non-compliance and habeas cases throughout the country.

There's no way to search on Court Listener or PACER for issues of non-compliance. And like I said, in like in the instances in New Jersey, certain evidence of non-compliance doesn't even appear on certain individual cases’ dockets. So like I said before, judges might not even know about it unless the government had admitted to it or there was some sort of cross case visibility.

So the data, and the reason why it's so important for the judges themselves to start keeping track of this is it at minimum creates a widespread record of serial non-compliance that could somehow support a broader accountability in ways that, you know, dealing with this on an individual case-by-case basis cannot.

So my hope is that if judges start keeping track of this, or if they start, you know, looking at what we have put together to help them keep track of this, it will inform decision making on either potential punishments for non-compliance, or just give them more of a picture of, Hey, this isn't just happening in my courtroom, this is happening, you know, all over the country, and here are 362 cases that I can point to prove that.

So I think it's really the whole in, in, I guess in this situation, the whole is also not just different from the sum of its parts. It's categorically different from the sum of its parts. What looks like specific bureaucratic dysfunction in a specific courtroom looks like something far more systemic when you place it next to 300 plus other cases.

So I think that's why judges need to absolutely be keeping track of this.

Molly Roberts: So you just gestured at this a bit, but that all brings me to my last question, which is, and then what you said, you're not yet accusing them of this being government policy, but if a judge looked at this nationwide trend and said, Hey, that does look like government policy, what would be the appropriate response from you right now?

They threaten civil contempt, and as you said, the government eventually seems almost always to come into compliance, but that doesn't mean things are working well because the violations are still happening in the first place. So what could or should—maybe just could, if you're not comfortable saying, should judges do, if they identify that there is the trend that it seems like your database is revealing?

Katherine Pompilio: Yeah, I'm, I'm gonna leave it absolutely to the judges to make the final decision on this.

Molly Roberts: It's very respectful of you,

Katherine Pompilio: Right. I mean, I'll take a step back. I think accusing government lawyers of non-compliance, period, is a big deal. But remember that this is also not just, you know, like me and Ben taking a step back, pointing to them and being like, Hey, you guys didn't comply with this order. That's bad. Stick our tongue out. You should do that, right?

We're counting instances of non-compliance using the judge's language or Justice Department admissions. So again, we only count something if a judge has said, ‘You did this in violation of an order,’ or ‘You didn't do this in violation of an order.’ I think so far, again, judges have been successful in, in bringing compliance, but I don't think that's enough.

I don't know if threatening criminal contempt would be an option or if that's an extreme option because the government does eventually in, in most cases, comply. But I think it's important for. Judges and listeners, and even myself as I, as I go through this massive mega list spreadsheet that I have of 362 cases, is that each case is a person fighting for, you know, their freedom, and in a lot of these cases, people are taken away from their families for, and, and transported to a different state.

And a lot of times the government doesn't even bother to answer as to why they, they transported them out of their state or why they detained them in the first place. So I'm hesitant to say, you know, I'd like to see criminal contempt and, and, but I think more, I think judges should follow through on more of their threats of sanctions and civil contempt that hasn't happened.

And I think maybe if they did that more and actually followed through on those threats that they have always said that they're so annoyed about having to make, that we would see less non-compliance and I think light a little bit of a fire under them, enforcing their compliance in a timely manner.

Molly Roberts: Okay, well, great. Not great. Very bad, really. But

Katherine Pompilio: Yeah,

Molly Roberts: Great to be learning more about it and great how the database enables that. Thank you so much for joining us, and thank you for spending all those hours slogging through with Claude's help these dockets.

Katherine Pompilio: Thank you, Molly.

[Outro]

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