Wider sweep for Detainee Act?
on Jan 18, 2006 at 8:30 pm
The Justice Department on Wednesday spelled out a new and more expansive view of the new Detainee Treatment Act’s court-stripping provisions. The Act, according to a new filing in the D.C. Circuit Court, appears to take away the courts’ authority to decide challenges to military detention even by captured foreign nationals who are not considered “enemy combatants” in the war on terrorism.
The filing came in the case of Qassim v. Bush (docket 05-5477) — one of two pending cases in the federal courts involving two natives of China who have been held at the military prison in Guantanamo Bay, Cuba, after being captured in Pakistan four years ago in December. They have been held at Guantanamo since June 2002. They have one appeal pending in the D.C. Circuit Court, and they have just filed an appeal asking the Supreme Court to hear their case without waiting for the Circuit Court to rule.
The two men are Abu Bakker Wassim and Adel Abdu’ Al-Hakim. This is how their lawyers describe them: They “are Uighurs, members of a Muslim minority who inhabit the Zingjiang Autonomous Region of far-western Communist China. The Uighurs have suffered under brutal communist rule…Petitioners, while present in Pakistan, were sold by bounty hunters to United States forces…” The government contends that they received military weapons training, supplied by the Taliban, in Afghanistan before fleeing to Pakistan, where they were captured.
The military designated them as “enemy combatants” when they were sent to the Navy base in Cuba. In March of last year, a status review tribunal there found that they no longer are enemy combatants. They have not been released, however, because the U.S. government does not want to return them to China, where it considers it “more than likely” they will be tortured, and it has not found another country to accept them. The two challenged their continued detention, but U.S. District Judge James Robertson concluded last month that “I find that a federal court has no relief to offer” because of the national security and diplomatic complications of releasing them or sending them to another country.
That is the order the Uighurs are challenging both in the Circuit Court and the Supreme Court. The Justice Department filing yesterday in the Circuit Court was an opposition to their request to expedite their appeal there.
“As an initial matter,” the filing said, “there is a substantial question of whether there is any jurisdiction over this case,” citing the Detainee Act’s court-stripping provisions. While the two are no longer deemed to be “enemy combatants,” it said, “they nonetheless fall within the scope” of the Act. “There is no question that petitioners are aliens being detained at Guantanamo Bay by the Department of Defense, and that they remain in military custody” — the definition of foreign nationals whom the Act has barred from the courts.
The Act, the government is arguing at all levels of the federal courts, applies retroactively, requiring the dismissal of all habeas challenges by Guantanamo detainees.
The government, in a second filing on Wednesday in the D.C. Circuit, repeated its now-familiar arguments that the Detainee Act scuttles all existing cases, except that the government wants the appeals court to go ahead and decide fundamental issues on whether the detainees have any rights at all that they can assert against their detention and their prisoner status. The D.C. Circuit is hearing two packets of cases by detainees making such challenges, and has called for briefing on whether it must dismiss those cases under the Act.
Once again, the government brief on the jurisdictional issue does not answer a number of complaints about the Detainee Act that attorneys for the captives have made in court filings. One, for example, is that the Supreme Court’s 2001 decision in INS v. St. Cyr means that Congress could only repeal the habeas jurisdiction of courts for pending cases by spelling out “specific and unambiguous statutory directives to effect a repeal” and that Congress did not do that in the Act. Another is that, if the Act is read to mean that Congress has scuttled pending cases, it would be an unconstitutional suspension of habeas rights.
The government’s main argument is that the text of the statute, on its own, accomplishes the withdrawal of jurisdiction over pending detainee challenges. The Act, it said, “explicitly eliminated all other statutory jurisdiction, including habeas jurisdiction, over such claims….That provision takes effect immediately.”
In addition, the brief relies on Supreme Court precedents that, it contended, established a general rule that a court-stripping law has immediate effect, ousting courts of their prior authority. “Because statutes removing jurisdiction presumptively apply to pending cases, Congress must expressly exempt pending cases in order to preserve the federal courts’ jurisdiction over them,”it argued.
The detainees’ brief on this issue is due at the Circuit Court next Wednesday. (The pending cases are under docket numbers beginning with 05-5062).
The government also has filed a motion in the Supreme Court to dismiss, under the Detainee Act, the pending case challenging the use of war crimes trial tribunals by the military for “enemy combatants” (Hamdan v. Rumsfeld, 04-184), a case the Supreme Court has agreed to hear.
On Friday, at the Supreme Court’s private Conference, the Court will be considering whether to hear another war-on-terrorism case, Padilla v. Hanft (05-533), according to the Court’s electronic docket. That case is a challenge to the capture and detention of a U.S. citizen, Jose Padilla, as a terrorism suspect.
