Detainees see flaws in DTA process
on Mar 22, 2007 at 4:22 pm
UPDATE Friday a.m. Sen. Arlen Specter, Pennsylvania Republican and ranking GOP member of the Senate Judiciary Committee, filed a friend-of-court brief Thursday, urging the Supreme Court to hear and decide the detainee cases this Term. “Given the lengthy debates and disagreements among Members of Congress as to the handling of these detainees, and the perception that the United States Court of Appeals for the District of Columbia Circuit failed to follow this Court’s direction in Rasul v. Bush, 542 U.S. 466 (2004), this Court should review these cases this term. The question presented here is not whether some of the individuals should continue to be detained. They should. The question is whether the U.S. Constitution ensures that the writ of habeas corpus is available for detainees to contest the legality of their detention by the executive,” the brief argued. Congress, the senator went on, has struggled with the constitutional issues, and has “aired and re-aired” the arguments, so “the time is ripe for this Court to address the constitutional infirmity of the [Military Commissions Act]’s attempt to curtail the right of habeas corpus.” The brief can be found here.
FURTHER UPDATE: Attorneys in the Boomediene v. Bush case filed their reply to support their petition on Friday, seeking to counter the government’s argument that the detainees should first test their claims in the D.C. Circuit Court. “Courts have never required habeas petitioners to wade through alternative procedures before addressing a Suspension Clause challenge to a repeal of habeas,” the brief argued. “The Suspension Clause would be a dead letter if Congress could repeal habeas and indefinitely delay a habeas petitioner’s ability to challenge that repeal by erecting manifestly inadequate substitute procedures.”
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Attorneys for a group of detainees at the miliary prison camp at Guantanamo Bay, Cuba, on Thursday disputed in the Supreme Court the Justice Department on whether the lower courts are moving ahead rapidly to review the new procedure for hearing the captives’ legal challenges — an alternative to habeas review..
In a reply (available here) to the government’s opposition to expedited Supreme Court review of two appeals by the detainees, lawyers in Al Odah v. U.S. (06-1196) said there is “substantial doubt” whether the captives can take advantage of the even limited judicial review the government had cited — the review process created by the Detainee Treatment Act of 2005.
The Solicitor General on Wednesday, arguing against Supreme Court review and expedited treatment of the detainee appeals, contended that the captives should first pursue their challenges in the D.C. Circuit Court under the DTA. But the detainees’ counsel said that the DTA only provides for review of prisoners who have had their status reviewed by procedures laid down by the Defense secretary. That was not done until last July 14, counsel said, and the detainees involved in the Al Odah case went through somewhat different review procedures before that date.
The reply also disputed the government’s contention that the D.C.Circuit was already moving on an expedited basis to review the DTA process in two pother ending cases. But the detainees countered that those cases have not been expedited by the Circuit Court, and the Circuit Court has ordered lawyers “not to brief the merits of their cases.” All that will be heard in a May 15 hearing at the Circuit Court, the detainees’ reply said, are “pending procedural motions.”
The reply also contended that the status review system set up by the Pentagon — the system that determines whether Guantanamo detainees are to remain confined — has a series of defects, including the lack of “a neutral decision-maker.”
Noting that the Justice Department had recently urged the Court not to speed up another detainee case (Hamdan v. Gates, 06-1169), the detainees said that the government had argued then that the issues would be raised in the new detainee cases since filed. Now, the reply commented, the government is urging the Court to wait for further action in the D.C. Circuit. The brief commented that, in the government’s view, “no case is ready for a decision while any other case remains undecided.”
On the question of what schedule the Court should follow if it grants review of the new cases, the detainees’ lawyer said they believe their more rapid schedule was appropriate, but they said they did not oppose the government’s alternative: merits briefs due on April 16 (detainees) and May 3 (government), detainees’ reply May 10, and oral argument May 21.
A reply in the other detainee case, Boumediene v. Bush (96-1195) is expected later, and will be posted when available. The Court is to consider the expedition question at its private Conference on Friday.
UPDATE 5:50 p.m. Attorneys in the Al Odah case also filed their reply to the government’s brief opposing any review of the case by the Court. That document can be found here. The reply makes the additional argument that, if the government’s view of their lack of constitutional rights were to prevail, they would be barred from raising any constitutional challenges during the DTA process in the D.C. Circuit. The Circuit Court, the brief noted, has already agreed with the notion that the Constitution does not shield the detainees. Aside from the Supreme Court, therefore, “there are no remedies left for the [detainees] to exhaust,” their lawyers said.
FURTHER UPDATE 7:20 p.m. The reply on the expedition issue in the Boumediene case also has now been filed; it is available here
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