Court switches, will hear detainee cases
UPDATE to 12:50 p.m.
In a startling turn of events in the legal combat over the war on terrorism, the Supreme Court on Friday agreed to reconsider the appeals in the Guantanamo Bay detainee cases. It vacated its April 2 order denying review of the two packets of cases. The Court then granted review, consolidated the cases, and said they would be heard in a one-hour argument in the new Term starting Oct. 1. Such a switch by the Court — from denial to rehearing and new argument and decision — may not have occurred since 1947, in Hickman v. Taylor, 329 U.S. 495, legal sources said Friday.
The order also said that new briefs will be sought, after the D.C. Circuit rules in pending cases on how judicial review is to work for detainees under the Detainee Treatment Act of 2005. The cases to be reheard by the Supreme Court are Boumediene v. Bush (06-1195) and Al Odah v. U.S. (06-1196). In those cases, the D.C. Circuit ruled on Feb. 20 that the Military Commissions Act of 2006 had stripped detainees of their rights to bring habeas challenges to their confinement. That is the ruling that the Supreme Court left intact in April, but now will move forward to review.
Under the Court’s Rules and precedents, it would have taken the votes of five Justices to grant rehearing, compared with the requirement of four votes to initially grant an appeal. When the Court denied review in April, only three Justices voted to hear the cases. But two of the other six, Justices John Paul Stevens and Anthony M. Kennedy, indicated they wanted the detainees to first attempt to get legal relief in the D.C. Circuit. Under the Detainee Treatment Act, the Circuit Court has the authority to provide limited review of military decisions to continue holding Guantanamo prisoners as “enemy combatants.”
Friday’s order was an indication that those two Justices had decided that the Court needed to change its approach, and so provided the votes needed to grant rehearing. (It is a fair assumption that Chief Justice John G. Roberts, Jr., was not in favor of rehearing; in an in-chambers order he issued on an earlier procedural matter in the detainees cases [applications 06A1001 and 06A1002] on April 26, Roberts opined that “possible court action” in the D.C. Circuit Court would not be enough to justify a grant of review in the face of the April 2 denial.)
Under the Court’s rules, a rehearing is granted only if there has been a change in “intervening circumstances of a substantial or controlling effect” or if counsel can cite “substantial grounds not previously presented.”
The new order did not state what changes had come about since the denial in April. The detainees’ lawyers, in their rehearing petition, had said that the unfolding of the review process in the D.C. Circuit Court would soon provide them with an argument for rehearing, since the process would be shown to be inadequate. More recently, the detainees’ lawyers had told the Court that information from inside the Pentagon detainee-review process confirmed their claim that the process was a “sham.”
It is unclear at this point just when the Court’s new review will unfold. The D.C. Circuit on May 15 heard oral argument on the procedures it will follow in review under DTA of “combatant status review tribunal” decisions to continue holding detainees at the U.S. military prison in Cuba.
The Circuit Court probably will feel some added pressure from Friday’s Supreme Court order to move ahead and decide those cases — Bismullah v. Gates (Circuit docket 06-1197) and Parhat v. Gates (06-1397).
The Circuit Court, however, was already moving with some dispatch to resolve those cases, because the first of the actual appeals in a DTA case is under a briefing schedule beginning on July 16, with an oral argument set for Sept. 27 That is the case of Paracha v. Bush (06-1038). (The Paracha case is also on its way to the Supreme Court, on the same questions about detainee legal rights as in Boumediene and Al Odah, with an appeal likely to be filed early in July.)
Once the D.C. Circuit has ruled, that decision, the Supreme Court said Friday, “would be of material assistance” to the Justices. With the Circuit Court ruling in hand, the Supreme Court will call for new briefs in the Boumediene and Al Odah cases. Conceivably, a briefing schedule could be completed this summer, and oral argument could be held early in the new Term, if the cases were to be expedited, as might be expected.
Although the Justices may not have been technically aware of other developments, activities in other detainee cases may well be affected by the grant of review in Boumediene and Al Odah. The Fourth Circuit Court is considering a government request to rehear en banc a panel decision there barring the military from detaining any civilian captured inside the U.S. as a terrorism suspect (Al-Marri v. Wright, Circuit docket 06-7427), and the D.C. Circuit is considering a request for initial en banc review of a case involving a Guantanamo detainee who is facing a war crimes trial before a military commission (Hamdan v. Gates, Circuit docket 07-5042). In addition, several District Court judges in Washington, D.C., are considering whether to dismiss other detainee habeas cases on the basis of the D.C. Circuit ruling that is at issue in Boumediene and Al Odah.
The order granting the rehearing petition is beyond strange. It would be of “material assistance” to “consult any decision” in Bismullah and Parhat? Well, of course it would — those are the cases addressing the procedures that SCOTUS originally thought the Boumediene petitioners hadn’t exhausted. (Or, at least, that’s what the statement by Kennedy and Stevens implied.)
If I’m a judge on the DC Circuit, why on earth would I move the Bismullah and Parhat cases — or any of the DTA cases — along, now that I know that SCOTUS has to address the adequacy of the DTA procedures in order to resolve the ultimate question of whether habeas has been unconstitutionally suspended? In other words, why do the work for them when they’re just going to review it de novo anyway? Is it solely for the purpose of developing a record in a court below? But that’s why SCOTUS waits until lower courts have reviewed the questions in the first place.
I really can’t make hide nor hair of this order, or what events may have led to it (what changed, from a legal standpoint, in between the denial of certiorari before and the granting of the rehearing petition today?), or what in the world the DC Circuit — or any of the lawyers working on DTA cases in the DC Circuit — is supposed to do in the meantime. It all seems extraordinarily irregular, at least from a procedural standpoint.
This order has all the makings of something that sounds good in theory (who’s really against reviewing the GTMO stuff?), but wasn’t really thought out well — and it’s probably going to cause a lot of headaches for the DC Circuit and provide SCOTUS with a bare-bones case for addressing DTA procedures next October, or whenever it hears argument.
Comment by Taylor Reynolds — June 29, 2007 @ 10:47 am
If you set out a rule now, you have it later to crush al-Marri.
Comment by Jacques McKenzie — June 29, 2007 @ 1:37 pm
This may be unusual, but it is also consistent. This package of Habeas cases was decided by the DC Circuit about a year before it will finish a second set of CSRT appeals involving the same people and issues. In April the Justices indicated that they wanted to first let the CSRT appeal process work itself out before deciding if it was adequate or if a separate Habeas/constitutional question had to be decided. Since then the DC Circuit has made it clear that it will not, on its own initiative, put the Habeas cases on some sort of undead life-support to await the outcome of the CSRT cases. Granting cert keeps the Habeas cases alive, but the accompanying comments indicate that they will still not be considered until after the CSRT appeals are decided. The only thing that really changed is that SCOTUS finally took responsibility for creating a form of suspended animation for cases that the DC Circuit decided was not within its authority. Reading anything more into it at this time, particularly comments about vote counts and merits, may be a mistake.
Comment by Howard Gilbert — June 29, 2007 @ 3:47 pm
Yes, and my prediction about the school cases taking so long to come out because the dissents were weighty and there was a conservative concurrence — that may have been wrong, too.
Comment by Jacques McKenzie — June 29, 2007 @ 4:40 pm
Kennedy’s switcheroo on granting cert has effectively obviated any October argument on the merits. On detainee issues, the administration has repeatedly demonstrated that it will do whatever it can to avoid having the judiciary decide the issue. It mooted out Padilla by dropping “enemy combatant” charges and it sought the dismissal of all pending habeas cases on the basis of MCA.
Here, the administration will likely either revise the CSRT process to provide full due process rights or shut down Gitmo and move all the detainees stateside. The practice of this administration is to avoid judicial reckoning when they think they’re going to lose.
Comment by Allan Ryan — June 30, 2007 @ 3:59 pm