Detainees resist any more delay
on Feb 7, 2008 at 5:39 pm
Contending that it is unlikely that the Supreme Court will agree to hear the government’s latest planned appeal on detainee rights, lawyers for Guantanamo Bay captives have told the D.C. Circuit Court that it is time to move on without any more delay to deciding whom the government may hold during a time of armed conflict as an “enemy.”
In a brief filed Wednesday (and cleared for public release Thursday), counsel for the detainees argued that it would be of service to both the Executive Branch and to Congress for the Circuit Court to actually begin deciding ultimate questions about military power to capture and hold alleged enemy combatants. Thus, the Circuit Court should get on with that process without waiting for the Supreme Court to act on the appeal that the government plans to file with the Justices by Feb. 14, the brief added. (The lead case in that appeal will be Bismullah v. Gates, Circuit docket 06-1197.)
“We are told,” the brief said, “that the Executive is waging a new kind of war, against a new kind of enemy. The question of who is an ‘enemy combatant’ in such a conflict is of profound importance, for it marks the crucial boundary between military and civil power. Final judgments based on complete records assist not only the judicial branch — which can better discern the law on a full record — but the coordinate branches of government as well.”
The detainees’ challenge to their designations as “enemy combatants” should not be handled by the courts in piecemeal fashion, the brief asserted. Quoting the late Justice Felix Frankfurter, the document argued that the momentum of justice “would be arrested by permitting separate reviews of the component elements in a unified cause.”
These were references to the nature of the dispute that now has developed in the Circuit Court, and that the government is preparing to take on to the Supreme Court in the Bismullah and companion cases. At issue is how much information the government must compile and submit to the Circuit Court as part of its review of the validity of “enemy combatant” rulings by military panels — so-called Combatant Status Review Tribunals. The government wants to supply for court review only the actual record of materials considered by a given CSRT, but the Circuit Court has ruled that, even if not put before a CSRT, there is likely to be a considerable array of information about individual detainees that the Circuit Court should consider when it reviews a given CSRT “enemy combatant” decision.
“If six years of Guantanamo litigation have demonstrated anything,” the detainees’ new brief said, “it is that clashing viewpoints based on pleadings and hypotheses will never be resolved through more preliminary rulings on pleadings and hypotheses. Only decisions on the merits, based on full records, will elucidate the law.”
The Justice Department on Monday asked the Circuit Court to delay enforcement of its July 20 Bismullah decision spelling out the government’s broad obligation to produce information for review of combatant rulings. It said it is planning to challenge that ruling in the Supreme Court this month, and asked that all detainee cases — some 180 in all — be put on hold until that planned appeal is resolved by the Justices.
In opposition, the detainees’ lawyers complained strenuously about the slowness of the Circuit Court process of hearing detainees’ challenges. The first such appeal by a detainee “has now passed its second anniversary.” The lead case on the procedures to be followed in resolving such appeals [Bismullah] “will soon be 20 months old,” the brief said.
“The threshold business in these cases,” it went on, “is to produce the record on review. The government has delayed and obstructed that business by every imaginable litigating strategem…Now the government seeks yet another stay while it pursues yet another effort to appeal an interlocutory order.”
The brief argued that the Supreme Court is not likely to hear the case, because it is in such a preliminary stage. The challenged order (in the Bismullah litigation) “is the type of decision that the Supreme Court declines to review prior to final judgment.” At this stage, it added, “there are no actual records to review.”
Although the Circuit Court has devoted more than a year, three decisions and seven opinions to the question of what information must be supplied for court review of “combatant” designations, that “has been an exercise in abstract hypotheticals,” according to the brief. There is thus nothing solid for the Supreme Court to review, it suggested.
The Circuit Court is expected to act promptly on the government’s request for a stay pending the Supreme Court appeal.
