Analysis

The D.C. Circuit Court, in a significant opinion Wednesday denying rehearing in the key case setting procedures for civilian court review of Guantanamo Bay detainees’ legal status, appeared to have narrowed an earlier ruling that had stirred a vehement protest by the government. The three-judge panel denied rehearing by that panel, leaving still open the government’s separate plea for en banc rehearing by the full ten-judge Court, but perhaps making it easier for the full court to deny that, too. The action might also coax the government into abandoning a plan to take the case promptly to the Supreme Court. (The new order came in the cases of Bismullah v. Gates [Circuit docket 06-1197] and Parhat v. Gates [06-1397].

Whatever its intent and its impact on other judges, the 12-page opinion (found here) seemed to be a triple defeat for detainees in trying to gain access to more information their lawyers can use in challenging in court their designation as “enemy combatants” — a finding that is necessary to their continued confinement at Guantanamo. (Such designations are made by military panels known as “Combatant Status Review Tribunals,” a creation of the Pentagon but given further legal status by Congress.)

First, the scope and volume of information in government hands about individual detainees that must be turned over to the Circuit Court (and to detainees’ lawyers, at least in part) seems to be reduced, compared to what had appeared to be required by the earlier ruling issued July 20. Second, the Court indicates that, if the government has lost or destroyed the information it had assembled earlier about a given detainee, it may have to find a way to re-assemble it and present it to a new sitting of a Combatant Status Review Tribunal before detainees get a chance at judicial review, further delaying the court process and prolonging detention. And, third, it indicates that, if most of the information in government hands is classified, the Circuit Court may have to conduct judicial review mostly with only the government present — thus excluding detainees’ lawyers to a significant extent.

Perhaps the main thing detainees’ lawyers could take from the new opinion is that it may help them argue — to the Supreme Court in already-pending cases — that the entire present system of civilian court review of detainees’ status is flawed, and thus is no substitute for the habeas review that Congress moved last year to take away.

Thus, detainees’ counsel are expected to submit new arguments to the Supreme Court on that very point, as briefing moves forward in the two granted cases on detainees’ legal rights — Boumediene v. Bush (06-1195) and Al Odah v. U.S. (06-1196). The Supreme Court has indicated that, as it reviews those cases, it will be interested in what the Circuit Court did in the Bismullah/Parhat proceeding. The Boumediene and Al Odah appeals are an attempt to revive habeas challenges, so that a more sweeping challenge to detention may be pursued. (If the government were to take its own appeal to the Supreme Court in the Bismullah/Parhat litigation, that could slow or at least complicate the Justices’ examination of the pending cases.)

A bit of background may put the Wednesday opinion in context.

Congress passed the Detainee Treatment Act in 2005, to give detainees a limited chance to go to the D.C. Circuit to challenge findings by CSRTs that they are enemy combatants. This was Congress’ substitute for habeas jurisdiction it was moving to scuttle.

The Bismullah/Parhat cases went before the D.C. Circuit to resolve just how DTA proceedings would unfold in that Court. Those procedures were laid out in the July 20 decision that the government then sought to have reconsidered. Those procedures generally would govern what information the goverment would have to produce in court, as a DTA case went forward.

The government, filing strongly worded statements by all top-echelon intelligence officials, warned that the July 20 decision would impose a mountainous burden on the government to gather all information in any agency’s hands about detainees — a task that would divert officials from such critical tasks as waging the “war on terrorism.”

The government also warned that much of the information is highly sensitive, so being obliged to share it with detainees’ counsel would seriously jeopardize national security.

The Wednesday opinion was the panel’s reaction. It suggested that the government lawyers had seriously exaggerated what the Pentagon was obliged to produce to the Court and to detainees’ counsel Although the duty to provide information would have to go beyond what was actually presented to a CSRT in a given case, the new opinion stressed that the information that might be available beyond that core was quite limited. It said that the information would have to be “reasonably available,” thus not necessitating a government-wide search for detainee background information.

In its July ruling, the panel had declared that the record before the Court in a given DTA case would have to “include all of the government information…because the DTA requires the court to review the CSRT determination to ensure” it was legally sound.

“The Government, it seems, is overreading Bismullah I,” Chief Judge Douglas H. Ginsburg wrote for the panel. Information that must be produced under that ruling, Ginsburg said, must be “reasonably available.” He added: “A search for information without regard to whether it is ‘reasonably avaiable’ is clearly not required by Bismullah I.”

But, the Chief Judge went on, if the government cannot, “within its resource constraints,” produce the information it had gathered about a given detainee before a CSRT, then the Court would not be able to review that particular Tribunal’s finding. But, it added, the government has an alternative: convene a new CSRT, and then collect for its consideration only “the relevant information in its possession that is then reasonably available.” (emphasis in original)

To the government’s fervent complaint about having to disclose secrets, the panel said that its July 20 ruling had made allowances for withholding some of that information. But, it said, if most of the information that must be produced in a DTA case is classified, then “the practical effect….may yet be that our review of a CSRT determination is in large part ex parte.”

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