U.S.: Time to act is now on detainee case

By Lyle Denniston
on Mar 11, 2008 at 11:45 am

The Justice Department told the Supreme Court on Tuesday that, if the Justices bypass now the new government appeal on detainees’ legal rights, there won’t be another chance to review the dispute.  In a reply brief, the Department argued that it will be possible to get resolution of that controversy “in a matter of months,” if the Court acts promptly.

The Court is scheduled to consider the new appeal in Gates v. Bismullah (07-1054) at its private Conference on Friday. At that time, the Court also will consider a government request, if it agrees to hear the case, to put it on an expedited review schedule for a decision this Term.  And the Court also will consider a government request to block lower courts from going ahead with detainee cases at the center of the new dispute.

Aside from the government’s stay request, its preference is for the Court to simply hold the Bismullah appeal until after a decision emerges later this spring in already-granted detainee cases — Boumediene v. Bush, 06-1195, and Al Odah v. U.S., 06-1196.  The outcme in those cases, the Department argued again Tuesday, will have an impact on the Bismullah case. Once the Court acts on those other cases, it can then move quickly on Bismullah, the brief said.

The Bismullah case focuses on the amount and kind of information that the Pentagon must gather and supply to the D.C. Circuit Court as it weighs Pentagon panel rulings declaring Guantanamo Bay prisoners to be enemies who must remain confined.  The pending Boumediene and Al Odah cases are tests of whether the Guantanamo detainees have any right to challenge their continued detention under federal habeas law – a broader form of judicial review than the Circuit Court will be doing in cases like Bismullah.

In its new brief, the Department insisted it is not trying to stretch out the tme for court review of detainee challenges.  And, it contended, the detainees involved in the specific eight cases that comprise the Bismullah group can go ahead now with review in the Circuit Court.  Such a review, though, would be based on only the specific information that Pentagon panels considered in making their enemy determinations, not the much wider array of information that the detainees want the Circuit Court to consider in its review of those determinations. It is this wider array of information that the Circuit Court has called for in the Bismullah controversy.

The government contends that it cannot reassemble that information in most, if any, of the 180 detainee cases now awaiting review by the Circuit Court.  Its only option, then, is to start over with “mass remands” of detainee cases to the Pentagon “in the midst of an ongoing armed conflict,” the brief asserted.

It would be a “massive undertaking” to try to “collect and review the classified information that the government would be required to produce” under the Circuit Court’s Bismullah rulng last summer, the Department added.

 If the Supreme Court were to decide now not to hear the Bismullah case, even though “this case is ripe for review,” the new document said, the government “will be denied any meaningful review at all” of the Circuit Court mandate to produce a vast volume of information.