Lawyers say Court is not closed to detainees
on Feb 21, 2007 at 3:46 pm
Lawyers for a Guantanamo Bay detainee, Sharaf Al Sanani, told the Supreme Court Wednesday that a lower court ruling closing federal courts to detainees’ challenges to detention is not binding on the Supreme Court. Thus, the attorneys contended, the Court retains the power to order the Pentagon to describe why it is holding Al Sanani after more than five years of captivity at the military prison camp in Cuba.
In answering a Justice Department plea for the Court to deny all relief to Al Sanani, the Yemeni national’s attorneys said that only the Supreme Court itself can determine whether it has lost jurisdiction over detainee cases under the Military Commissions Act of 2006. The D.C. Circuit Court on Tuesday relied on the MCA in ordering the dismissal of scores of habeas claims pending in District Courts in Washington, D.C.
“Until this Court reviews this split decision [by the Circuit Court] and issues the final word on the MCA…, the status quo should be preserved by granting the limited relief sought” in his plea (application 06A797; the reply brief can be found here).
The attorneys are relying upon the Supreme Court’s 1947 decision in U.S. v. United Mine Workers, for their argument that the Court itself decides when it has jurisdiction when that is in dispute. The UMW decision included this quotation from a 1906 opinion by Justice Oliver Wendell Holmes, Jr.: “This court…and it alone necessarily had jurisdiction to decide whether the case was properly before it….Until its judgment declining jurisdiction should be announced, it had authority, from the necessity of the case, to make orders to preserve the existing conditions and the subject of the petition…”
The Al Sanani reply is thus a signal of one of the arguments that other detainees’ lawyers will be making when they appeal the D.C. Circuit ruling to the Supreme Court soon, perhaps late next week.
The Yemeni citizen’s attorneys also sought to turn part of the D.C. Circuit ruling to their advantage. The Circuit Court had declined a suggestion by the government to go ahead and review the military’s rationale for holding individual detainees, through a special new procedure in the Circuit Court set up by Congress in the Detainee Treatment Act of 2005. The Circuit Court majority, the reply brief said, found that the record in the detainee cases so far “does not have sufficient information to perform the review that DTA allows.” Whether detainees are seeking to test their captivity either under DTA or by habeas, the brief argued, a factual record must be developed, and that is all Al Sanani is seeking at this point.
The brief included a reminder that Al Sanani’s attorneys have only until Friday of this week to make a record to oppose continued detention when he comes up for an annual military review at Guantanamo of his “enemy combatant” status. “Given the virtual absence of process and the potentially life-changing signifance of the [annual review], it is not asking too much for counsel to be provided with the basis information needed to contribute meaningfully…”
The application is pending before Chief Justice John G. Roberts, Jr., as Circuit Justice for the D.C. Circuit. Apparently he has made no decision yet whether to decide on his own, or refer the application to the full Court.
