Government to seek Bismullah rehearing
The Justice Department notified the D.C. Circuit Court on Friday that it will seek rehearing en banc in the combined cases laying out procedures for reviewing decisions by the military to keep detainees imprisoned at Guantanamo Bay, Cuba — that is, cases being pursued under the Detainee Treatment Act of 2005. In a filing in the first of the DTA cases, the Department said it will file a rehearing petition by Sept. 7 in Bismullah v. Gates (Circuit docket 06-1197) and Parhat v. Gates (06-1397).
The Department had strongly hinted that it would take this step in a filing on Aug. 20 in Paracha v. Gates (06-1038). That filing was discussed in this post. Friday’s filing, also in the Paracha case, can be downloaded here.
In the coming rehearing petition, the Department said, it will ask the Circuit Court to provide “clear guidance” on just how extensive the file of documents must be in each detainee cases under DTA. This is a reference to the formal record that the Circuit Court will be reviewing as it decides the legality of detention decisions made by the military’s Combatant Status Review Tribunals. The CSRTs are the mechanism the Pentagon uses to decide whether a Guantanamo prisoner is an “enemy combatant” and thus will not be released. Scores of such cases are in the Circuit Court or on their way there now.
In the Bismullah/Parhat ruling, issued on July 20, the Circuit Court spelled out a concept of the record requirement that is far more extensive than the Justice Department had expected or hoped it would be. “The record as defined by Bismullah is not simply a collection of papers sitting in a box at the Defense Department,” the filing on Friday said. “It is a massive undertaking just to produce the record in this one case.” Producing it by a court-ordered Sept. 13 deadline in Paracha “is not possible without potentially compromising the reliability of the production and without also fundamentally compromising the intelligence agencies’ ability to redact sensitive national security material, as permitted by this Court’s Bismullah decision.”
It thus renewed its request for a postponement of the Sept. 13 production deadline. It said it needs a temporary stay of that deadline, at least while the Circuit Court considers the coming rehearing petition in Bismullah/Parhat. It sought a delay of 30 days beyond the Circuit Court’s resolution of the en banc petition.
The Department also said it will be seeking similar delays of other record-filing deadlines in other DTA cases; the Circuit Court has set deadlines in seven other cases, running from Sept. 24 to Oct. 25.