Detainees’ lawyers: cases should go forward

This report is part of continuing coverage of the aftermath of the Supreme Court’s ruling on Thursday in Hamdan v. Rumsfeld (05-184).

UPDATE Tuesday a.m.: The text of the filing discussed below can be found here.

Lawyers for detainees being held at the U.S. military prison at Guantanamo Bay, Cuba, on Monday urged the D.C. Circuit Court to go ahead and rule on challenges to their captivity, arguing that Congress has not taken away the courts’ authority to rule on those cases.. The packet of cases at the Circuit Court test whether detainees who have not been charged with any crimes have any legal rights and, if so, what they are. Two U.S. District judges have ruled in conflicting ways on those issues.

The detainees’ attorneys, responding to a move on Friday by the Justice Department contended that no further briefing is necessary on the jurisdictional question.

“The government,” the new filing contended, “does not and could not claim that Hamdan is vague or ambiguous on the ‘obviously pertinent’ jurisdictional issue. Hamdan speaks with perfect clarity on that issue, squarely holding that the Detainee Treatment Act of 2005 did not strip the federal courts of jurisdiction over the Guantanamo detainees’ pending habeas corpus petitions.”

The opposing brief noted that there have now been three rounds of briefs and two oral arguments in the Circuit Court that dealt with many of the arguments about jurisdiction. So, it argued, the Circuit Court “is fully capable of applying Hamdan to the present appeals without additional help from the parties.” In a footnote, the detainees’ lawyers recalled that the Justice Department last January had urged the Circuit Court to go ahead and rule on the pending cases without waiting for the Supreme Court to decide Hamdan.

A new round of briefing, the lawyers said, would only involve more delay — in cases that have not come to any resolution of the prisoners’ habeas claims more than four years after they were imprisoned and more than two years after the Supreme Court allowed them to file those claims.

“The Court should resolve these appeals as soon as possible to prevent further prejudice to the Guatanamo detainees,” the brief concluded.

A three-judge panel of the Circuit Court held arguments on the pending cases last September 8 and March 22. it si expected to act promptly on the Justice Department plea for new briefing, since the Department suggested that new briefs be filed simultaneously on July 17 — two weeks from Monday.