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Government seeks to end detainee cases

(NOTE: The following post brings up to date the developments on Tuesday under the new Detainee Treatment Act of 2005. This post completely replaces one filed Tuesday night, which was based solely on incomplete news accounts. The blog thanks a number of attorneys who have taken the time to supply documents bearing on this dispute.)

The Justice Department on Tuesday opened its expected campaign to clear out all of the pending court challenges to detention of foreign nationals rounded up in the war on terrorism and held at the military prison camp at Guantanamo Bay, Cuba. The effort began in the lower courts, but is expected to reach the Supreme Court, too, by the end of this week.

In a letter to the D.C. Circuit Court and motions filed with judges of the U.S. District Court in Washington, the Department disclosed that it will shortly file papers that apparently will seek to curtail all existing lower court cases filed by detainees at Guantanamo. It notified those courts of President Bush’s signing into law of the new Detainee Treatment Act of 2005, designed to sharply limit any legal challenges to the treatment of Guantanamo captives.

As of Wednesday morning, there was no new filing in the Supreme Court, where detainee Salim Ahmed Hamdan has a case pending (05-184), which the Justices have agreed to hear. Thomas B. Wilner, a Washington attorney for several detainees, said on Wednesday that he will be filing an amicus brief on Friday in the Hamdan case, raising the issue of what Congress intended in the new law’s jurisdictionali provisions. Other amici may do so as well, and the Bush Administration is also likely at some point to notify the Court of its views on the legislation.

Because the entire issue of how to interpet the new Act applies to all levels of the federal courts, it is expected to go to the Supreme Court for ultimate resolution. It is conceivable, though, that the Justice Department may seek to have the D.C. Circuit look first at the jurisdictional issue, even in Hamdan’s case, based on the new law.

In the D.C. Circuit, two sets of cases involving habeas challenges by detainees have been heard, and are awaiting decision (the lead docketed cases are 05-5064 and 05-5062). On Tuesday, in a letter to that Court’s clerk, a Justice Department attorney, Robert M. Loeb, said: “The Government anticipates filing with the Court no later than the week of January 9, 2006, a motion to govern further proceedings in these cases in light of the new legislation.”

Loeb’s letter relied on a federal appellate court rule permitting the filing, after argument, of citations to “supplemental authorities” (Rule 28j).

The letter did not disclose what the Justice Department will propose, but the Bush Administration has already concluded that the new law takes away court jurisdiction to hear all pending and future cases based on habeas challenges to the capture and detention of foreign nationals during the war on terrorism. President Bush signaled that interpretation in signing the new legislation on Dec. 30. Loeb’s letter told the Circuit Court that “the statute, including its elimination of statutory habeas jurisdiction, is effective immediately.”

The view that existing cases were wiped out by the law will be contested vigorously by attorneys for detainees. Their opposition is expected to take two forms: first, an argument that Congress did not intend to scuttle pending cases, and second, if the law does have that effect, it is unconstitutional. On the second point, the attorneys are expected to rely in part upon a new study by the Congressional Research Service of the Library of Congress, saying that the new legislation “may raise constitutional issues with respect to the Suspension Clause.” That study remarks: “Although the Supreme Court has not specifically addressed the issue of the withdrawal of jurisdiction from all courts to consider challenges to the actions of government officials, it would seem likely that such restrictions would be constitutionally suspect.” The full study can be found here.

Under the new law, detainees are allowed only two forms of court challenge, both in the D.C. Circuit, not in the District Court: a challenge to rulings by military review panels of designations of detainees as “enemy combatants” who must remain detained, and a challenge to war crimes convictions by the new “military commissions.” Thus, no pre-review or pre-trial challenges would be allowed. The law undertakes to eliminate habeas jurisdiction, but the question now arising is how that would affect pending cases.

Besides moving on Tuesday in the D.C. Circuit, the Justice Department put District Court judges with pending Guantanamo cases on notice of the plan to seek dismissal of all such cases, under the new law. In a series of filings, each a “notice of supplemental authority,” the Department cited the new law. It added: “No sooner than the week of January 9, 2006, respondents anticipate filing in each of the above-captioned cases a motion to dismiss or for other appropriate relief based on the new law. Prior to or shortly after the filing of such motion, respondents will consult with petitioners’ counsel in an effort to agree upon a briefing schedule that can be proposed to the Court.”

News accounts of that maneuver on Tuesday night quoted Department officials as saying they would be seeking the dismissal of 187 cases, involving about 300 Guantanamo detainees. In fact, the issue affects all of the 500 or so detainees now at Guantanamo, because any individual who does not have his own habeas case pending is covered in a catchall petition on behalf of 570 “John Does” (docket 05-313).

The text of the Justice Department letter to the D.C. Circuit follows.

U.S. Department of Justice
Civil Division, Appellate Staff
950 Pennsylvania Ave., N.W. , Rm. 7513
Washington, D.C. 20530-0001
Tel: (202) 514-3602
Fax: (202) 307-2551

January 3, 2006

Mr. Mark Langer
Clerk, U.S. Court of Appeals for the D.C. Circuit
333 Constitution Ave., N.W.
Washington, D.C. 20001

Re: Al Odah v. United States, Nos. 05-5064, 05-5095 through 05-5116
Boumediene v. Bush, Nos. 05-5062, 05-5063
Oral argument held on September 8, 2005

Dear Mr. Langer:
Pursuant to Rule 28(j) of the Federal Rules of Appellate Procedure, appellants, the United
States, et al., in Al Odah, and appellees, Bush, et al., in Boumediene, write to inform this Court of the enactment of section 1005 of the Department of Defense Appropriations Act of 2006, Pub. L. No. 109-___, § 1005 (signed by President Bush on Dec. 30, 2005) (copy attached), also known as the Detainee Treatment Act of 2005.

Section 1005(e)(1) of the Detainee Treatment Act of 2005 amends the habeas statute, 28
U.S.C. § 2241, to state that “no court, justice, or judge shall have jurisdiction to hear or consider”any habeas claim filed by an alien detainee held by the Department of Defense at Guantanamo Bay. It further bars jurisdiction over “any other action against the United States or its agents relating to any aspect of the detention,” if the detainee is currently in military custody or has been determined to an enemy combatant (after review by the D.C. Circuit). Section 1005 provides in subsection (e)(2) for “exclusive” jurisdiction in the D.C. Circuit to review the validity of final enemy combatant determinations of the Combatant Status Review Tribunal (CSRT), and in subsection (e)(3) grants
the D.C. Circuit “exclusive” jurisdiction over the final decisions of any military commission rulings “rendered pursuant to Military Commission Order No. 1, dated August 31, 2005 (or any successor military order).” The exclusive jurisdiction of the D.C. Circuit over all CSRT rulings and military commission decisions applies to all pending cases, § 1005(h)(2). The statute, including its elimination of statutory habeas jurisdiction, is effective immediately, § 1005(h)(1).

The Government anticipates filing with the Court no later than the week of January 9, 2006, a motion to govern further proceedings in these cases in light of the new legislation.

Respectfully submitted,
Robert M. Loeb
Counself for the United States, et al., and Bush, et al.