Government opposes quick relief for detainee
on Feb 14, 2007 at 6:29 pm
In the first Guantanamo Bay detainee case to reach the Supreme Court since Congress moved last Fall to thwart all habeas challenges to military captivity, the Bush Administration has urged the Court to remain on the sidelines, at least for the time being. The Court is scheduled to consider that argument at its private Conference on Friday — earlier than previously expected. This grows out of a development that has only now come to public attention.
This development is another indication that the prolonged consideration by the D.C. Circuit Court of fundamental legal issues surrounding the detainees’ status, without a ruling on those issues, has begun to spawn extraordinary efforts to get the judicial process working again, by Supreme Court command, if necessary.
On Dec. 13, a lawyer for a a Pakistani businessman, who claims numerous contacts in the U.S., filed three separate cases in the Supreme Court. These are the first detainee cases in the Court since the enactment of the court-stripping Military Commissions Act of 2006.
Overall, they contend that the U.S. military has wrongly designated this foreign national an “enemy combatant” in the war on terrorism, that lower courts’ failure to act on his habeas challenge is an unconstitutional denial of the habeas writ, and that he has a right to be transferred out of Guantanamo so that he can get adequate medical treatment for a heart ailment. His challenges in lower courts have been denied, at least as to the medical treatment issue, but his claims against his “combatant” status and his detention remain on hold because the Circuit Court continues to ponder how to decide scores of detainee cases in a pending proceeding that has run for 23 months.
The Pakistani, Saifullah Paracha, asked the Supreme Court for three separate forms of relief: review of the delay in his and other detainee cases, review of the “enemy combatant” designation and his prolonged imprisonment at Guantanamo, or an order to lower courts to rule on his claims (technically, he seeks writs of certiorari, mandamus and original habeas). His pleadings are nearly identical; materials from his certiorari petition can be found here The cases are entered on the Court’s docket as 06-8447 (certiorari), 06-8448 original writ), and 06-8449 (mandamus)..
The Solicitor General’s combined response to the three filings — filed at the Court Jan. 22 — can be found here.
In his petition for Supreme Court review, Paracha says that he was captured on an airport parking lot in Bangkok, Thailand, in July 2003, by masked men, and was soon sent to the U.S. Air Force Base at Bagram, Afghanistan. He was held there for a year, then moved to the military prison camp at Guantanamo Bay, Cuba, in September 2004. A military status tribunal has designated him an “enemy combatant” for alleged ties to an Al Qaeda terrorist organization. His habeas challenge has been pending in U.S. District Court in Washington since November 2004.
The Justice Department told the Supreme Court, in its response suggesting denial of all relief, that the military has evidence that he suggested to an Al Qaeda operative that nuclear weapons should be used against U.S. troops, that he has large amounts of “Al Qaeda money,” and that he was involved in an Al Qaeda plot to “smuggle explosives into the U.S.” Paracha’s petition in the Supreme Court insists that “he is pro-American and abhors terrorism.”
The government contends that the Supreme Court has no jurisdiction to hear his certiorari petition challenging circumstances surrounding treatment for his heart disease, because jurisdiction was taken away by the Military Commissions Act that went into effect in October.
It does not appear to question the Supreme Court’s jurisdiction to consider the mandamus or the original habeas writ pleas, but argues that Paracha cannot satisfy the standards for these rare forms of legal relief. It contends that the delay in action by the District Court and the D.C. Circuit do not amount to a suspension of the writ of habeas corpus, because he can receive court review of his “enemy combatant” protest at the D.C. Circuit under the Detainee Treatment Act that Congress passed in an earlier court-stripping effort involving Guantanamo detainees.
The Paracha filings are expected to be followed soon, perhaps later this week, by a second round of complaints to the Supreme Court about the failure of the D.C. Circuit to decide the detainee cases. An earlier post discussing this planned maneuver can be found here.
(Thanks to Paracha’s counsel, Gaillard T. Hunt of Silver Spring, Md., for alerting the blog to his filings and for sharing documents.)
