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Government appeals in detainees’ cases

(This is one of a continuing series of reports on the aftermath of the Supreme Court’s June 28 decisions in Rasul/Al Odah v. Bush and Hamdi v. Rumsfeld.)

The Justice Department on Thursday formally asked the U.S. Court of Appeals for the D.C. Circuit to allow an immediate – and expedited – appeal of a federal judge’s ruling allowing terrorism suspects being held prisoner at Guantanamo Bay, Cuba, to challenge their detention. That is the next step in a journey that ultimately is likely to take the dispute to the Supreme Court.

Although U.S. District Judge Joyce Hens Green has authorized such an appeal of her ruling January 31 in the In re Guantanamo Detainee Cases, federal law gives the Circuit Court discretion to decide whether an appeal may proceed.

It seems highly likely that the Circuit Court will do so, since there is a direct split in the District Court in Washington, D.C., over the key issue involved – that is, whether the Guantanamo prisoners have any rights under the U.S. Constitution and under the Geneva Convention on the treatment of prisoners. Under federal court jurisdiction (US USC 1292-b), such an appeal may be allowed if it involves a difference of opinion on “a controlling question of law” and prompt appeal may help decide the dispute. If the Justice Department wins the appeal, that could lead to dismissal of all of the challenges by detainees to their detention – challenges that now number more than 60 in the District Court, and potentially could involve most of the estimated 550 prisoners still at Guantanamo Bay.

The Justice Department, as usual in war on terrorism cases, is arguing an extreme threat to the president’s power to wage war as the primary constitutional reason for pursuing an appeal. “Immediate review is appropriate,” the petition for interlocutory appeal argues, “because the issues raised in these cases implicate the Executive’s ability to wage war successfully, and, thus, the safety of the United States’ forces and, ultimately, its citizens, as well as those of our allies.”

Expedition is necessary, the petition adds, “in order to permit these important issues regarding Executive power and the alleged constitutional rights of enemy detainees to be resolved without undue delay.” It noted that some of the issues in the detainees’ challenge to their detention overlap with questions already before the D.C. Circuit in a government appeal of a separate case testing the Pentagon’s creation of military tribunals to try terrorism suspects on war crimes charges. (That other case, due to be heard March 8 on an expedited basis in the D.C. Circuit, is Hamdan v. Rumsfeld, docket 04-5393.)

The department told the Circuit Court that it “would support any degree of expedition necessary to facilitate the coordination and/or consolidation of this case with Hamdan.”

At the moment, the Hamdan case is scheduled to be heard by a three-judge panel of the D.C. Circuit, but a request for immediate en banc review is pending. The pileup of related cases in the D.C. Circuit – two other appeals have been filed by the detainees as part of the same litigation – might increase the chances that the Circuit Court would move on to en banc review.