As the first court review of a Guantanamo detention decision nears a critical stage, lawyers for prisoners at the U.S. military prison camp at the base in Cuba are moving to try to obtain a wide-ranging judicial inquiry into the process. “Any review more limited than habeas review,” one of the attorneys asserted in a letter Monday to the Justice Department, “would render…unconstitutional” the Detainee Treatment Act of 2005.

The first official determination of an “enemy combatant” status to be directly reviewed in a civilian court will come in the D.C. Circuit Court in the case of Paracha v. Gates (Circuit docket 06-1038). Up to this point, court cases on detainee affairs have focused on what kinds of legal rights, if any, detainees have to challenge their continued confinement at Guantanamo after being found to be “enemy combatants.”

But the case of Saifullah Paracha, a Pakistani citizen but also a lawful permanent resident of the U.S., has emerged as the first test case on the merits of such a finding by a military Combatant Status Review Tribunal — the mechanism the Pentagon set up after the Supreme Court ruled in 2004 that the Guantanamo detainees should have some right to test prolonged confinement. Paracha has been held at Guantanamo since Sept. 20, 2004.

Paracha’s habeas challenge to his detention was ordered dismissed by the D.C. Circuit inApril, based upon the Circuit Court’s Feb. 20 ruling finding that the Military Commissions Act of 2006 wiped out all existing habeas cases by Guantanamo prisoners — the decision that the Supreme Court will review in its next Term. Paracha’s attorneys have until Aug. 7 to file an appeal to the Supreme Court from that dismissal. In the meantime, however, Paracha’s challenge to the CSRT ruling that he is an “enemy combatant” is moving forward on the merits in the Circuit Court, under terms of the Detainee Treatment Act.

Paracha’s legal arguments against the CSRT finding against him are due to be filed next Monday. But, a week in advance of that filing, his attorneys have laid out on more detail the position they are taking on how far-reaching the Circuit Court’s review must be.


As the detainees’ challenges begin to move forward in the Circuit Court, there is no deeper gulf between government lawyers and detainees’ counsel than the one that lies between their views of the scope of that review. The government has taken the position that the Circuit Court’s only role is to judge whether a CSRT has followed Pentagon procedures on how to go about its status findings, with the presumption that those findings are valid. The detainees, by contrast, argue that the Circuit Court is free to go well beyond the procedural regularity of the CSRT proceedings, and to probe widely into all of the information that the government may have about a detainee — including classified information. They hope to turn up evidence that would undercut the “enemy combatant” determinations.

Some of this argument is already in play as the D.C. Circuit Court weighs in another proceeding jow it will proceed in DTA cases challenging CSRT decisions. A three-judge panel heard two cases on those issues on May 15, and a decision is awaited at any time. In the meantime, the Circuit Court allowed the Paracha case to move forward on the merits — perhaps to be affected later, after the Circuit Court resolves the two cases on its own review duties. (Those two cases are Bismullah v. Gates, Cicuit docket 06-1197, and Parhat v. Gates, 06-1397. The Supreme Court is also awaiting the outcome of those two cases before it completes a briefing schedule for its review of the law stripping courts of habeas jurisdiction in detainee cases.)

In Monday’s letter to the Justice Department in the Paracha case, detainee lawyer Jason M. Knott of Washington contended that the Circuit Court under the DTA has full authority to create its own record for judging a specific combatant decision. “In our view, DTA review is de novo and plenary, and not limited to the CSRT ‘record,’ ” Knott wrote. (The text of the letter can be found here.)

The 2005 law, he added, “requires the Court to determine whether the detainee has been afford a fair opportunity to rebut ‘the presumption in favor of the government’s evidence,’ ” and “a detainee who was denied access to all adverse evidence before the CSRT has not had a fair opportunity to rebut that presumption.”

Any piece of evidence in the government’s possession, classified or not, must be reviewed by the Circuit Court so long as it is relevant to a CSRT decision, the letter went on. The detainee lawyer said that the record may have to be supplemented “by discovery or otherwise.” Moreover, any classified documents put before the CSRT must be stricken if the detainees’ counsel has been denied access to them, it argued.

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