UPDATE Saturday a.m. The Justice Department, in added materials filed with the rehearing petition on Friday, asked the Circuit Court to allow only the judges — not their law clerks, and not the detainees’ lawyers — to see or use two secret versions of declarations by the heads of the CIA and the NSA. The motion to restrict access to those items can be found here. The Department also filed a motion to expedite the Circuit Court’s consideration of its rehearing petition; that document can be found here.

The motion to expedite argued that fast action by the Circuit Court on the rehearing plea could enable the Supreme Court to have the benefit of the Circuit Court’s views on officials’ document-filing duties as the Justices consider the pending detainee cases (Boumediene v. Bush, 06-1195, and Al Odah v. U.S., 06-1196). If the Circuit Court were to deny rehearing, the Department said, the government would then have the option of appealing the Bismullah/Parhat case to the Supreme Court during the current Term. The question of how much information the government must turn over to the Circuit Court and to detainees’ lawyers is “an exceptionally important threshold question” as the Circuit judges weigh enemy combatant rulings, the motion siad..

Analysis

With a full rank of the Nation’s top intelligence officers warning that they will have to sacrifice some of their efforts in wagng war on global terrorism if they must obey a court ruling in the Guantanamo detainee cases, the Justice Department on Friday asked the full ten-judge D.C. Circuit Court to reconsider a three-judge panel ruling on the scope of judicial review of some 130 detainee lawsuits. The petition and accompanying declarations by five high-level officials amount, first, to a wide-ranging challenge to the Circuit Court — almost to the point of accusing it of endangering national security, and, second, to an energetic new attempt to sharply narrow any civilian court review of detainee challenges to their continued confinement.

The petition for rehearing en banc was filed in the combined cases of Bismullah v. Gates (06-1197) and Parhat v. Gates (06-1397), in which the Circuit Court laid down the basic procedural rules for its congressionally-assigned review of “enemy combatant” rulings for Guantanamo Bay detainees. Those rulings are made by Pentagon panels named Combatant Status Review Tribunals; a finding that a detainee remains a combatant results in continued detention.

It will take the votes of a majority of the 10 active Circuit judges to grant reconsideration.

To read the rehearing petition, click here. To read the original July 20 panel opinion by the Circuit Court, click here.

A declaration of Michael V. Hayden, director of the Central Intelligence Agency, is here, one by Robert Mueller, director of the Federal Bureau of Investigation, is here, one by Keith B. Alexander, director of the National Security Agency, is here, one by J. Michael McConnell, National Intelligence director, is here, and one by Deputy Secretary of Defense Gordon R. England, Deputy Secretary of Defense, is here. A final added document, Pentagon regulations on reviewing detainee evidence, is here. In addition to the public versions of the officials’ statements, classified versions with more secret materials were submitted to the Court.

As Justice Department and other government officials read the Circuit Court’s ruling in Bismullah/Parhat, it would compel a government-wide search to find and then share with the Court and with detainees lawyers any kind of information — highly sensitive or otherwise — that might bear upon each individual’s status as an “enemy combatant” even if some or even a great deal of the information casts no doubt on the validity of designating an individual as a combatant. That, the Department’s petition argued, goes far beyond what Congress meant in 2005 when it passed the Detainee Treatment Act, assigning to the Circuit Court the exclusive role in hearing detainees’ legal complaints about the status findings by CSRTs.

DTA was passed as a substitute for habeas corpus challenges by detainees; Congress had moved to wipe out all such habeas cases. The Department argued Friday that “It is inconceivable that as Congress sought to displace traditional habeas review it intended to impose a record review far more extensive than anhy production requirement found in habeas.”

The Circuit Court on July 20 rejected the government argument that all it had to produce, in any individual detainee challenge to a combatant designation, was the actual record that a CSRT had considered. Going considerably beyond that, the Circuit Court ordered the government to produce all government information about each detainee who files a DTA challenge. The ruling, though, allowed the government to withhold from the other side’s lawyers sensitivie classified information.

Friday’s filings argued, however, that even filing some of the information under tight security wraps would pose heavy risks to national security, because it would compromise promises of confidentiality to other countries and to human intelligence sources who had supplied some of the information.

CIA Director Hayden’s separate declaration argued: “The breadth of discovery apparently required by the Court’s decision will include information about virtually every weapon in the CIA’s arsenal to combat the terrorist threat to the United States.” Deputy Defense Secretary England contended that the Circuit Court ruling’s command to produce all the government information “will require DoD to pull resources away from the warfighting and intelligence gathering missions that are essential to fighting the Global War on Terrorism. We cannot overstate the importance of ensuring that our components can focus on their primary missions.”


As of Friday, the government remains under a court-ordered duty to produce the first full record about a detainee by next Thursday, Sept. 13. That would be in the case of Paracha v. Gates (06-1038) — the opening review of a CSRT combatant finding, but probably only the first of at least 130 such reviews by the Circuit Court. The Justice Department has asked the Circuit Court to give it at least a 30-day postponement in deliverying that record, but has also requested that it not be required to submit any such record until after the Circuit Court decides whether to grant rehearing of Bismullah/Parhat. The Court apparently has not yet reacted to those requests.

From the earliest point in the Circuit Court’s consideration of how it will conduct its review of CSRT findings, there has been a fundamental disagreement between the two sides. The government has argued that the kind of review Congress had in mind was only a limited weighing of the CSRT results, just like an ordinary Circuit Court review of an administrative agency’s work. The detainees’ lawyers, The detainees’ lawyers, however, have contended that the Court’s review must be the virtual equivalent of habeas review, or else the CSRT and DTA processes would have to be found unconstitutional. The Circuit Court’s July 20 ruling seemed to fall more closely on the side of the detainees’ demands, producing a government response that has steadily escalated in recent weeks into the full-scale challenge that emerged on Friday.

A central theme of the Department’s rehearing petition was that, in a criminal case in the civilian context, courts do not require prosecutors to produce everything in their files so that the court can decide on its own what should be produced for the court and shared with the other side. The DTA process, being carried out in a “unique wartime context,” should not be understood to give detainees more rights — and the courts more power — than in the civilian criminal context, the Department argued. “There is no reason,” it contended, “to conclude that a court’s duty in reveiwing the wartime status determination of an alien enemy combatant under the DTA would be so much broader than its duty in reviewing a constitutional violation in a domestic criminal case,” the petition said.

Another main theme, of course, was the suggestion that the Court’s delving into all of the government information about a detainee would not only impose “an enormous burden” on the government in collecting that data, but also would severely restrict the government’s ability to “collect inteligence and wage the war on terrorism,” citing the assertions of three of the officials who filed declarations.

Under federal court rules, the detainees’ lawyers do not have an automatic right to file a reponse to the rehearing petition. They could do so only if the Circuit Court asked for a brief in response. Rehearing would not be granted, usually, unless a response were sought. There is no time limit for the Court to act further on the rehearing plea.

In the first DTA review case, involving Saifullah Paracha, his lawyers have opposed the government request for postponement of the information-filing deadline of Sept. 13.

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