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Government seeks new briefing on detainees

The Justice Department on Friday urged the D.C. Circuit Court to order supplemental briefing in the Guantanamo detainee cases, to discuss the impact of the Supreme Court’s decision Thursday in Hamdan v. Rumsfeld (05-184). The motion was filed in a package of cases (Boumediene v. Bush, 05-5062, is the lead case).challenging the detention of hundreds of individuals rounded up during the war on terrorism. The text of the motion can be found here.

Suggesting new briefs of no more than 20 pages, the Department asked that the briefs be filed simultenously “by July 17, 2006, addressing the Supreme Court’s decision in Hamdan.” The motion said that the decision “is obviously pertinent here, in particular with regard to the Court’s discussion of the jurisdictional provisions in the Detainee Treatment Act of 2005.”

The Act stripped all federal courts of jurisdiction to hear habeas cases filed by any detainee at the U.S.military prison at Guantanamo Bay, Cuba, and set up a new but more limited review of detainees’ status by the D.C. Circuit. The law covered cases testing the detention of individuals not yet charged with any crimes, and those testing the war crimes tribunals (“military commissions”) at Guantanamo, but its impact on already-filed cases has been the subject of dispute.

The Justice Department argued in the Supreme Court that the Act was to be applied retroactively to all pending cases, and thus that it had taken away the Justices’ authority to decide Salim Ahmed Hamdan’s challenge to the military tribunals. In its decision on Thursday, however, the Court rejected that argument, and found that the Act did not nullfy pending cases. The Court’s discussion of the Detainee Treatment Act was in general terms.

On Thursday, at a background briefing, government officials were asked whether the decision meant that the detainee cases in the D.C. Circuit were “still alive.” An official responded: “Well, we’re certainly still studying that aspect of the decision…The only question before the Court strictly was whether or not it had jurisdiction to consider Hamdan’s case, and that was the focus of the briefing and the arguments made by Hamdan in this case. And so many of the arguments were related specifically to divesting the Supreme Court of jurisdiction over this case. As to how the decision applies to the other pending cases in the district courts — and there are hundreds of those cases — we’re studying that.”

That comment at least hints that the Justice Department intends to argue to the D.C. Circuit that Hamdan’s jurisdictional holding was confined to the military commission context. The detainees’ lawyers, though, would be expected to counter that the ruling is not so limited, and keeps the other cases on track, too.

(A link to the Justice Department/Pentagon background briefing on Hamdan can be found in this post.)