Justice Department interprets Hamdan

UPDATE Friday p.m. The Justice Department’s second court filing offering its views on the jurisdictional ruling by the Supreme Court in Hamdan v. Rumsfeld repeated the arguments that are discussed in the post below.. The new filing came as a notice of “steps being taken in the wake” of the Hamdan decision. It covered 180 detainee cases pending in the D.C. District Court. The text of the new notice can be found here.
In another filing in District Court, the Department discussed the jurisdictional question as a secondary issue while making a new request for permission from the Court to review materials seized from Guantanamo detainees — including at least some written attorney-client communications — that the Department says may bear upon its investigation of three detainees’ recent suicides. The proposal urges the Court to approve a Pentagon “filter team” to look at the materials and decide which are privileged documents, and which should be turned over to investigators looking into whether the suicides were a coordinated effort, and whether they might indicate future suicide plots. This other filing can be found here; the jurisdictional issue is discussed in a lengthy footnote 3.

The Justice Department, in its first court filing laying out its views on the Supreme Court’s interpretation of the Detainee Treatment Act, argued on Thursday that the ruling a week ago in Hamdan v. Rumsfeld did not salvage existing detainees’ District Court challenges to their captivity. The Department’s view is that the Act shifts all of the pending cases to the D.C. Circuit Court for a new (and seemingly more limited) review of the detainees’ claims. That jurisdictional issue, it argued, was left open by the Supreme Court. (The filing came in Kiyemba v. Bush, District Court docket 05-1509).

The Department offered its reading of the Act, post-Hamdan, as it asked U.S. District Judge Richard M. Urbina to wipe out a U.S. magistrate judge’s order requiring prompt access to lawyers for four Chinese Uighur detainees now being held captive by the U.S. military at Guantanamo Bay, Cuba. Last Thursday, Magistrate Judge Alan Kay in Washington, D.C., ordered the government to a;;pw lawyers to meet “as soon as possible” with their clients. It has been more than a year, Kay noted, since the Uighur detainees first sought to file challenges to their detention, with the aid of counsel. (Kay’s memorandum order can be found here.)

The government had argued to Kay, before Hamdan was decided by the Supreme Court, that the Detainee Treatment Act withdrew his jurisdiction over the counsel access issue. He concluded, however, that the question of when and under what circumstances an existing counsel access order permits access “simply has no bearing on the question of which court has jurisdiction to review the merits” of the detainees’ challenge to their captivity.

In the Justice Department’s “emergency motion” filed with Judge Urbina Thursday, it asked for an immediate stay of Kay’s order while it seeks reconsideration, and requested that the order be “set aside forthwith.” (The motion, a lengthy document with appendices, can be found here. The discussion of the Detainee Act is brief, appearing on pages 12-14.)

The Supreme Court, the Department said, “reserved the question of whether the exclusive review provisions of the Act did apply to cases pending prior to enactment. Although the petitioner in Hamdan escaped the Act because his challenge did not involve a final decision of a military commission within the exclusive jurisdiction of the Court of Appeals…, the Court stated that ‘[t]here may be habeas cases that were pending in the lower courts at the time the DTA was enacted that do qualify as challenges to ‘final decision[s]’ within the meaning [of the Act]. We express no view about whether the DTA would require transfer of such an action to the District of Colubmia Circuit.”

The Uighurs; case, the Department contended, “is such a case, ie., challenging petitioners’ designation as enemy combatants through Combatant Status Review Tribunals, and given the Act’s investment of exclusive review in the Court of Appeals, the District Court lacks jurisdiction over this action.”

The Department noted that it had asked the D.C. Circuit to order supplemental briefs on the impact of the Act on a packet of detainee cases awaiting decision in the appeals court. So far, the Circuit Court apparently has not responded to that request.