New panel, date for detainees’ hearing
on Jul 27, 2005 at 4:34 pm
(This is one of a series of continuing reports on the aftermath of the Supreme Court’s June 2004 decisions in the war on terrorism cases.)
The D.C. Circuit on Wednesday named a new — and more senior — panel of judges to hear the appeals in the cases of the detainees now being held captive at the U.S. Naval prison at Guantanamo Bay, Cuba. The panel also moved up the date of the hearing, to September 8.
The new order said that the two sets of appeals — one by the government, one by detainees — will be heard in a single, combined argument at 9:30 a.m. on Thursday, September 8. Previously, the court had planned to hear two, back-to-back arguments.
In an order issued July 6, the hearings had been set for October 6. After that, the detainees had asked for an earlier hearing date, and the Circuit Court agreed. The July 6 order named a panel composed of Circuit Judge Judith W. Rogers and two new members of the Court, Circuit Judges Janice Rogers Brown and Thomas B. Griffith.
Wednesday’s order said the appeals would be heard in a single, combined argument — before a new panel. Judge Rogers remains on it, but will be joined by Circuit Judges A. Raymond Randolph and David B. Sentelle. The Court gave no explanation for the shift. The only changed circumstance since July 6 was that the detainees asked for an earlier hearing date, and the Circuit Court agreed to move it up. It is unclear whether that would account for the change in panel assignment. (UPDATE: A reader writes that the panel announced Wednesday has been scheduled since earlier in July to hear cases on the date now set for argument. The panels are “drawn and announced months in advance,” the reader notes.)
One immediate impact of the shift is that it will include a judge, Randolph, who was written two decisions that were most sympathetic to the Bush Administration’s broad claims of presidential power during the war on terrorism. One of those decisions was the July 15 ruling in the case of Hamdan v. Rumsfeld, upholding President Bush’s creation of special military commissions to try Guantanamo detainees accused of war crimes. The Hamdan decision included a judicial embrace of a number of claims of presidential authority. For example, it left to the President and his associates in the Executive Branch any enforcement of the Geneva Convention Relative to the Treatment of Prisoners of War. The Randolph opinion said that the 1949 treaty cannot be enforced in court.
That decision appears to undercut one of the principal claims being made by the Guantanamo detainees in the pending appeals (a series of cases, with the lead one being Boumedienne v. Bush, docket 05-5062).
In the panel’s order on Wednesday rescheduling the oral argument in those appeals, lawyers were ordered to file additional briefs discussing the impact on the detainees’ cases of the Hamdan ruling. The government’s supplemental brief is due August 2, with the detainees’ response due August 9.
Judge Randolph also was the author of a March 11, 2003, decision by the D.C. Circuit finding that the detainees at Guantanamo had no legal right to sue in federal court to challenge their detention — a ruling overturned by the Supreme Court by a 6-3 vote on June 28, 2004. In the 2003 ruling in Al Odah v. U.S.. Randolph wrote that the detainees “cannot seek release based on violations of the Constitution or treaties or federal law; the courts are not open to them.” The Supreme Court ruled in Rasul v. Bush/Al Odah v. U.S. that federal courts could hear the detainees’ habeas challenges, but did not specify what relief, if any, they might obtain.
The new cases brought by the detainees and now pending in the D.C. Circuit are the outgrowth of that Supreme Court ruling, and are attempts to assert a variety of legal claims against prolonged detention of captives who have not been charged with any crimes. Two District Courts in Washington reached conflicting results, with one judge finding the detainees were entitled to no legal relief, but with the other upholding some claims, including due process and judicial enforcement of the Geneva Convention.
The new Circuit panel’s order outlined a streamlined plan for the combined hearing, with only two attorneys appearing for the detainees and only two for the government — unless the government opted for just one. The parties are to file a joint statement on August 5 outlining the issues to be presented, and the amount of time they seek for each issue.
