Circuit Court holds firm on DTA review
on Aug 25, 2008 at 10:40 am
UPDATE 3:30 p.m. There have been other developments in detainees’ cases; they are discussed in the continuation of the post below.
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The D.C. Circuit Court, turning aside a Justice Department plea to cut back sharply on its review of military decisions to detain individuals at Guantanamo Bay, has put its tough review regime back into effect. In a brief order on Friday (found here), the Court without explanation reinstated its pair of decisions in Bismullah v. Gates (Circuit docket 06-1197). That order thus implied that the Circuit Court did not believe the Supreme Court had undercut the prior Circuit rulings, as the Justice Department had contended.
The Circuit Court’s two Bismullah decisions, on July 20 and Oct. 23 of last year, required the Pentagon and other government agencies to produce a potentially wide array of information about detainees, to make the system of civilian court review work as the panel thought Congress intended in the Detainee Treatment Act of 2005. It was not enough, the panel declared, to have before it only the information that the Pentagon had actually considered — in proceedings before Combatanta Status Review Tribunals. This kind of broad review, the Justice Department contended, threatened harm to national security.
The Department appealed the two Bismullah decisions to the Supreme Court (Gates v. Bismullah, 07-1054) after an evenly split Circuit Court denied en banc review in February. The Justices took no action on the appeal until after they decided the case of Boumediene v. Bush (06-1195) on June 12, clarifying some of the legal rights of Guantanamo detainees. Then, on June 23, the Justices vacated the Circuit Court rulings in Bismullah and told the lower court to look at the case again “in light of Boumediene v. Bush.”
After the case returned to the Circuit Court, the detainee’s lawyers urged the panel to reinstate its prior rulings, arguing that some detainees wished to go forward with Circuit Court review of the Pentagon’s CSRT detention decisions, even though they also now had the option (under Boumediene) of pursuing direct challenges to detention in habeas cases in District Court. In response, the Justice Department argued that, by vacating the prior Bismullah rulings, the Supreme Court had indicated that continuing with the Circuit Court role could not be reconciled with the reopening of habeas cases in District Court. The Court, by vacating Bismullah, signaled that that kind of proceeding should be set aside, the Department had contended. (This dispute was discussed in an earlier post, found here.)
Instead, in its order on Friday, the Circuit Court panel, splitting 2-1, simply reinstated its prior rulings, thus restoring them as fully binding mandates on how the DTA process would continue to operate. Circuit Judges Douglas H. Ginsburg and Judith W. Rogers signed the order; Circuit Judge Karen LeCraft Henderson dissented.
The order, however, said nothing about a separate motion the Justice Department has made: that all of the scores of DTA cases be put on hold while the habeas cases proceed in District Court. Presumably, the panel will act on that question separately.
A variety of other developments have been occurring in detainee proceedings in recent days. Here are some of the details:
 1. A hearing scheduled in U.S. District Court Tuesday morning could provide a major test of whether Congress has taken away from the federal courts any authority to oversee the war crimes trial system before there are final verdicts. Thomas F. Hogan, a senior District judge who is coordinating detainees’ habeas cases in District Court, will hold a hearing at 11 a.m. on a plea by attorneys for two Guantanamo prisoners to prevent military prosecutors from meeting with the captives without their lawyers’ consent.
The two detainees, Kuwaiti nationals Fayiz Mohammed Ahmed Al Kandari and Fouad Mahmoud Al Rabiah have not been charged with any crimes before a military commission, but their lawyers said they have learned that they will be charged. The attorneys also said that a member of the military prosecution and investigative team has met with Al Kandari, and that prosecutors have said such meetings would be undertaken without the consent of the defense lawyers. A military appeals court refused to intervene to stop such meetings, which the detainees’ lawyers contend are unethical. Documents on this dispute can be found here, and here, and here.
2. In a new development affecting the war crimes prosecution of five individuals accused of taking part in the 9/11 attacks — including alleged mastermind Khalid Sheikh MOhammed, defense lawyers asked for added time to file legal motions. Under a present schedule, such motions would be due on Friday of this week. The attorneys asked that the deadline be put off until Nov. 25, contending that the cases that could lead to the death penalty for each of the five accused are so complex — and lawyers’ access to the clients is so restricted — that counsel cannot mount an adequate defense in the time available. The motion can be downloaded here.
