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Analysis: the next challenge by detainees

Lawyers for foreign nationals being held at the war-on-terrorism prison camp at Guantanamo Bay, Cuba, gave iindications on Friday that broad new legal challenges will follow if the detainees’ existing cases are thrown out under a law passed late last year by Congress. Although intent on keeping alive those present lawsuits, the attorneys laid the groundwork for keeping detainee cases in the courts for some time to come. The court-stripping law adopted in late December, the Detainee Treatment Act, may turn out to have been a virtual invitation to a continuing court struggle.

Two new briefs were filed in a packet of detainees cases at the D.C. Circuit Court (the lead case is Boumediene, et al., v. Bush, et al. (05-5062). Those cases basically challenge the government’s authority to capture and detain foreign nationals without charging them with any crime. After the Justice Department files a brief next Friday, the D.C. Circuit will move on to a hearing on March 22 to analyze the meaning and the impact of the Detainee Act. The initial question is whether that law wipes out all existing habeas challenges, and substitutes in their place a sharply limited review of detainees’ claims in that Circuit Court.

The main arguments in the briefs here and here are familiar: principally, that Congress did not intend to scuttle the existing detainees’ cases, but only to fashion a limited review process for future cases, and — if Congress did intend to wipe out the present claims — the Act is unconstitutional as a suspension of the writ of habeas corpus. The arguments are supported by various amici, including Sen. Carl Levin, Michigan Democrat and one of the authors of the new law, and two groups of scholars, here and here.

The briefs, while making those core arguments, also indicate that the government may have to fight a two-front legal war the next time around. One would be a challenge to the process that the Pentagon set up hastily in 2004 in hopes of satisfying the Supreme Court — the process that led to rulings that almost all of the detainees remained dangerous enough that they had to be kept in prison as “enemy combatants” (but still without criminal charges). The other would be a challenge to the new version of that process that Congress mandated in the Treatment Act. These would go forward in the D.C. Circuit and, presumably, on into the Supreme Court.

If the D.C. Circuit were to rule in the present cases that the new Act does not apply to the detainees’ existing cases, those would then go forward on a broad constitutional claim that the government had no authority to capture or detain them in the first place. That is not a direct challenge to any review process at Guantanamo; it is, rather, a more fundamental assertion that they should not be at Guantanamo at all, and thus should be released.

But the review processes would become the center of a new challenge, if the courts were to conclude that Congress has wiped out the existing habeas petitions.

A bit of background will set the stage on what is going on here.

After the Supreme Court, in Rasul v. Bush, ruled in 2004 that the Guantanamo detainees must be provided some forum where they could challenge their capture and detention, the Pentagon set up so-called “combat status review tribunals” at the Cuba base. Their task: review the reasons for keeping the detainees and decide whether to prolong their detention. The process worked quickly, but under a cloud over evidence-gathering and over the limited rights of detainees in the process.

Congress decided, as part of its action on the Detainee Act, to change those tribunals. It ordered the Pentagon to come up with new procedures for them, including provisions to assure that evidence used against detainees had not been gathered by torture or coercion. Not one of these new tribunals has yet been set up; indeed, the Pentagon has yet to supply to Congress the specifics on how they will operate.

These differences form part of the argument of the detainees that the Act does not apply to them — that is, they have not gone through the new process, so Congress meant that to apply to future detainee claims, after the new process has started to work. (Further, they argue that any court review of the new process would be so limited that it could not be considered a substitute for habeas and that, too, means Congress could not have constitutionally nullified existing habeas claims.)

But, should the courts disagree on that point, the detainees want the D.C. Circuit simply to wipe the existing cases off the docket, and let the prisoners start new challenges in the Circuit Court. They resist the government’s suggestion that the Circuit Court simply treat the existing cases as challenges to the new process, on the government’s theory that there is little difference between the review process the detainees had at Guantanamo, and the new version.

Both the old and the new Guantanamo tribunals, however, clearly would be assailed by the detainees before the D.C. Circuit — whether it keeps its present review of the cases going, or dismisses those and allows the detainees to start over. A centerpiece of the challenge to the original tribunals would be the apparent lack of a ban on evidence gathered by torture or coercion. And the challenge to the new process will include both the claim that detainees’ rights are not fully assured in those, either, and on the separate claim that the D.C. Circuit would not be allowed by the new Act to make a searching inquiry into the basis for continued detention, and would not have the authority to order any detainee’s release even if the prisoner succeeded in challenging detention.

And, as a further maneuver that indicates the courts’ inquiry could be prolonged, the detainees asked the D.C. Circuit, if it rules now that it has lost jurisdiction, to put that decision on hold until the detainees have a chance to appeal to the Supreme Court.

The prospects are further complicated by the fact that the Supreme Court is already looking at the meaning of the Detainee Treatment Act, but in a different context. The Justices are examining whether that Act wipes out a challenge pending there to the war crimes “military commissions” set up at Guantanamo for actual trials. (Hamdan v. Rumsfeld, 05-184) The Court is to hold a hearing on the Hamdan case, including the jurisdictional issue, on March 28.