Detainees resist limits on court review
on Jan 26, 2006 at 11:41 am
Lawyers for foreign nationals captured during the war on terrorism have mounted a broad challenge to the Bush Administration’s unusual argument that a federal appeals court has lost the power to hear their cases but still may go ahead with a strictly limited review of the detainees’ legal claims.
With the support of a dozen American and British experts on the law of habeas, the detainees on Wednesday told the D.C. Circuit Court that they are entitled to a full factual review of the basis for being held by the military, as well as a full legal review of Executive Branch authority to detain them at all The new judicial review substitute created by Congress in the Detainee Treatment Act of 2005, they argued, would give them far less than that. Moreover, they contended, those new procedures simply do not apply to the detainees in their present status.
The filings were the middle round of the process of making written arguments to the D.C. Circuit on the question of whether Congress in the new Act has stripped the federal courts — including the Supreme Court — of authority to consider the already-pending cases in which detainees at the U.S. military prison camp in Guantanamo Bay, Cuba, are contesting their detention. The Bush Administration on Feb. 1 is to tile a reply brief as the final step before the D.C. Circuit confronts the issue of its jurisdiction to decide two packets of detainees’ cases. (The cases begin with docket 05-5062.) The Circuit Court already heard the detainee cases on Sept. 8, before the new Act was passed. It is unclear whether it will hold a new hearing before ruling on its jurisdiction.
In the government’s opening brief on that issue a week ago, the Justice Department urged the Circuit Court panel to throw out the pending cases “for want of jurisdiction,” but to convert the existing appeals into challenges under the Detainee Act. Going forward, the Circuit Court could, the Department argued, determine whether the detainees have any legal rights at all, and, if they do, whether the military decision to continue their detention satisfied such rights and whether the President — on his own or with Congress’ approval — had the power to order their detention. Thus, it said, the detainees will not be shut out of court altogether, but will retain some chance at court review.
That alternative, the detainees argued in one of the new briefs (by the Al Odah detainees), “provides neither an adequate nor an effective alternative to resolve and remedy the…pending habeas claims.” The Detainee Act, they said, does not give them the rights “necessary to challenge the legality of executive detention effectively.” They do not have a right to challenge their detention under presidential order, do not have a chance to probe the facts behind their detention, do not have the right to develop evidence — including attempts to learn whether any statements used to support their detention were obtained by torture. Any review they could get under the Act “would not be meaningful” because they were ordered detained when the military was using tribunals that did not give them a fair chance to contest their fate. Besides, those tribunals do not even satisfy procedures mandated by the Detainee Act for such reviews, they argued.
The Al Odah brief is here, the Boumediene brief here, and the habeas scholars’ brief here The scholars’ brief was filed by the Brennan Center for Justice at New York University Law School.
The other group of detainees, in the Boumediene case, makes the same point. Since Congress has not made the formal decision to suspend the writ of habeas corpus, they argued, it could only wipe out existing habeas challenges “if a substitute remedy is both adequate and effective to test the legality of a person’s detention.” The new review process set up by the Act, their brief went on, “lacks any mechanism for [detainees] to probe and rebut any facts purportedly relied upon by the Executive when it decided to imprison them at Guantanamo.” The court, in reviewing the Guantanamo status tribunals, appears to be required to accept the government’s facts for a captive’s continued detention, they said.
The habeas scholars, in their friend-of-court filing, offered an extensive review of the history of habeas, and concluded that the new Act’s procedures — if applied to pending cases — “would eviscerate the common law writ of habeas corpus.” Common law habeas review, the academics said, “has long included the power not only to review a particular case but also to probe the factual basis on which a persons detention rests.” The new Act, they went on, does more than shift the forum for hearing claims from the District Court to the Circuit Court, and would make a substantive change in the detainees’ rights, depriving them of ” the historic and robust habeas inquiry into the truth and substance of the allegations on which their detention rests”– including the question of whether detention was based upon evidence obtained by torture of detainees.
The new briefs also recite arguments that detainees’ lawyers have made previously, in the Circuit Court and in the Supreme Court, that Congress did not intend to wipe out existing claims by detainees and, if it did, it acted unconstitutionally.
