U.S. seeks new ruling on detention powers
on Jul 9, 2008 at 5:08 pm
NOTE: This post is part of continuing coverage of the lower courts’ role in implementing the Supreme Court’s June 12 decision in Boumediene v. Bush (06-1195), clarifying the legal rights of detainees held by the U.S. military.
The Justice Department, in multiple filings in cases involving scores of Guantanamo Bay detainees, has urged the D.C. Circuit Court to restore government authority to transfer prisoners out of the Cuban base without court permission.
In identical filings in 12 cases on Wednesday, and in a combined filing in eight cases on July 1, the Department asked the appeals judges to wipe out a stack of lower court orders forbidding transfers of Guantanamo detainees without notifying, 30 days in advance, the prisoners’ lawyers and federal judges. Those orders have probably halted at least some transfers.
The transfer question is one of the key points of dispute between government and detainees’ lawyers, and a federal judge on U.S. District Court is already weighing a request from detainees’ counsel that he issue many more of the notice orders by two weeks from Friday. It is unclear what impact the government’s new filings in the Circuit Court will have on that request. Judges on the District Court have asked the Circuit Court explicitly to move ahead quickly on this and several other issues affecting the fate of detainees.
For more than two years, the Justice Department has been taking the position that it violates the President’s constitutional powers for federal judges to regulate the transfer of prisoners away from Guantanamo. Moreover, it has argued that Congress in 2005 and again in 2006 expressly took away the right of detainees to challenge transfers as part of their claims against detention.
The Circuit Court has not yet ruled on the broad constitutional powers argument, because it dismissed the detainees’ underlying challenges under habeas law to their detention. The ultimate fate of the transfer question has awaited the Supreme Court’s Boumediene ruling.
In its July 1 filing, the Justice Department chose a series of cases led by Bush, et al., v. Kiyemba, et al. (docket 05-5487, and others) as a basis for seeking the reopening of the transfer dispute. The Circuit Court’s finding in March 2007 that the underlying habeas cases had to be dismissed, the document argued, left open the claim that restrictions on transfers undercut presidential authority and lacked any legal basis. Now that the Supreme Court has revived the underlying habeas cases in its Boumediene decision, the filing said, the Circuit Court should now rule on those other questions.
Those other arguments, it added, “are unaffected by the Supreme Court’s action in Boumediene.” While both sides have already filed briefs on those issues, and they figured on oral arguments in September 2006, the Department said, the Circuit Court may want news briefs “to address any pertinent developments that have taken place in the almost two years since the original briefing was completed.”
In particular, the filing said, the two sides should brief the question of whether U.S. courts’ power to restrict transfers of detainees held by the U.S. military was taken away by the Supreme Court in another ruling on June 12 — Munaf v. Geren (Supreme Court docket 06-1666). That unanimous decision barred habeas relief against transfer of U.S. citizens being held by the U.S. military in Iraq and awaiting prosecution in Iraqi courts for crimes in that country.
The Department asked for a new briefing schedule (with the first round of simultaneous briefs within 21 days) and, if the Circuit Court wants oral argument, the Department suggested it be scheduled for the Court’s “first fall sitting, allowing the Court to resolve these issues without delay.”
The Department on Wednesday followed up that filing with a new motion in 39 consolidated cases that the government has appealed, also involving the transfer controversy (the lead case is Bush, et al., v. Abdah, et al., 05-5224).  The government aso filed the same motion in 11 other cases. It then asked the Circuit Court to put all of those cases on hold until the Court decides the Kiyemba case.
