Detainees appeal to judicial modesty
on Nov 20, 2006 at 6:47 pm
UPDATE Tuesday p.m. The second detainees’ brief filed Monday is now available. It can be found here.
Guantanamo Bay prisoners moved on Monday to portray the Justice Department as spoiling for a constitutional fight over Congress’ power to narrow the legal rights of detainees — a fight that the defense lawyers insisted should be avoided. In a bid for judicial modesty, the detainees’ attorneys told the D.C. Circuit Court that a decision on Congress’ court-stripping powers in the new Military Commissions Act of 2006 is not inevitable, as the government had argued a week ago. A narrower ruling is available, the new brief said.
Quoting two prior D.C. Circuit rulings, the brief said that “a court should avoid, not seek out, a constitutional issue the resolution of which is not essential to the disposition of the case before it.” The brief, one of two scheduled to be submitted to the Circuit Court Monday, can be found here. The Circuit Court is considering two packets of habeas cases filed by detainees in what may be a prelude to the next Supreme Court review of war on terrorism issues.
The Justice Department insists that the new Commissions Act unambiguously withdrew from all federal courts, including the Supreme Court, any authority to decide a habeas challenge by any war-on-terrorism detainee who is an alien. What Congress substituted, the Department contends, was a perfectly adequate process of review by the D.C. Circuit. The detainees undertook to answer both contentions on Monday.
To the Department’s argument that the Act cannot be narrowed in scope to avoid the question of whether it is an invalid suspension of the habeas writ, the detainees said the actual wording of the Act’s court-stripping provisions and the history of their drafting in Congress shows that Congress left intact the authority of the courts to rule on existing habeas cases. Congress had before it alternative language that would have done what the government says it did, but that wording was cast aside in favor of provisions that separated pending habeas cases from all other challenges, and barred the courts from hearing the latter, the detainee brief asserted. At a minimum, the brief suggested, the language actually enacted is insufficiently clear-cut to meet the test for a definite suspension of the writ.
“What is clear is that the Suspension Clause issue is squarely raised in this case, it is a substantial issue, and it can be avoided by interpreting the statute as it is written not to revoke jurisdiction over pending habeas cases,” the detainees’ counsel argued.
To the Department’s argument that there has been no scuttling of the writ because the substituted review process is adequate, and will in fact give the detainees substantial legal rights, the detainees’ brief contended that the new review mechanism in the D.C. Circuit provides far less process than even those convicted of war crimes after World War II had. German and Japanese enemies had “trial-like processes” while today’s detainees “have had no such process.” Without habeas, the detainees said, the detainees would be denied an opportunity for the courts to assess independently the fairness and adequacy of the military procedures for determining whether they must remain confined at Guantanamo Bay.
There is no mechanism in place, alternative to habeas, that would allow the detainees to try to make a case against prolonged imprisonment, their brief contended.
The detainees also disputed the government’s argument that Congress has made clear that detainees have no right to challenge in court their detention under the Geneva Conventions on the treatment of prisoners. Again urging avoidance of a constitutional issue, the brief suggested that, if the new Act did put the Geneva Conventions protections out of reach, that “would raise seerious Due Process, Suspension Clause, and Article III problems.”
With the briefs filed on Monday, the Circuit Court now is in a position to move ahead to rule on the impact, if any, that the Commissions Act has on the detainee challenges. The Court has not said whether it will hold a hearing on that question.
