Detainees set stage for return to Court
on Apr 9, 2007 at 5:22 pm
Final UPDATE 10:50 p.m. The federal government on Monday laid out the procedures it wants the D.C. Circuit Court to follow when it begins reviewing military orders to continue the detention of prisoners at Guantanamo Bay, Cuba. They differ sharply with recommendations made by the detainees’ lawyers last month. The differences in approach are discussed in the concluding paragraphs of the following post. These two filings are now available in full for download; they are linked to in the final paragraphs.
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Lawyers for Guantanamo Bay detainees moved on Monday to set the stage for an early, second chance to get Supreme Court review of their attempt to mount sweeping challenges to their capture and prolonged detention at the U.S. military prison camp in Cuba. They formally asked the D.C. Circuit Court not to release its ruling barring their habeas cases, and to keep that decision on hold until after they attempt a return to the Supreme Court. They will first try to get some relief in the D.C. Circuit, but that does not appear promising, because they want to proceed with that in a broader way than the Circuit Court may be planning and definitely broader than the government has proposed. Monday’s maneuver, the lawyers indicated, was being made over the government’s opposition.
The Supreme Court last Monday refused to hear the detainees’ initial appeals seeking to revive their habeas challenges in U.S. District Court in Washington, D.C. — challenges that were wiped out by Congress last Fall in legislation that the D.C. Circuit upheld. But the Justices made clear that the Court was not then ruling on the validity of their claims, and held open the prospect of a new look at those claims later. The detainees’ lawyers relied on those indications in filing their “motion to withhold issuance of mandate.” The text of the motion can be found here. It was filed in the case of Abdah v. Bush (Circuit docket 05-5115), but is expected to be followed by similar requests from other detainees.
The filing was part of an increasingly complex procedural situation that is developing as both sides in the detainees’ cases seek to follow up on the Supreme Court’s action and on the D.C. Circuit ruling Feb. 20 that the Justices left intact for the time being. The Circuit Court is being drawn deeply into a multi-faceted controversy over how to go forward with a series of new detainee appeals that may number more than 300. It has set a hearing on some aspects of the procedural morass for May 15, but the dispute over process is widening rapidly beyond that beginning.
All of these cases, like the Abdah case, are expected to be the first test in the D.C. Circuit of that Court’s authority to review decisions by military panels that seek to justify continued holding of Guantanamo detainees on the premise that they remain “enemy combatants” and cannot be freed. The Detainee Treatment Act, passed by Congress in 2005, set up this review system in the Circuit Court as a substitute for broader challenges under federal habeas law.
Challenges under DTA to the decisions of the military detention panels — called “combatant status review tribunals” — are beginning to accumulate in the D.C. Circuit before that Court has had time to work out the processes it will follow. Simultaneously, the Justice Department has indicated in recent days that it is going to ask several District Court judges to dismiss any habeas cases that detainees still have on file at that level. It told one District judge last Friday that it will start filing dismissal motions “in the next several days.” Even though the Supreme Court has not passed finally on the court-stripping provisions enacted by Congress, the Justice Department is treating the issue as settled — at least for lower courts — and thus wants all habeas cases out of court promptly.
The detainees are trying, however, to keep their habeas pleas technically alive, and that was part of what lay behind the motion filed Monday to put the D.C. Circuit ruling of Feb. 20 on hold for the time being.
The detainees’ lawyers told the Circuit Court that five Justices had indicated last Monday that, once the detainees go through the limited review allowed in the Circuit Court under the Detainee Treatment Act, “the Supreme Court will give serious consideration to a renewed certiorari petition seeking review” of the Feb. 20 decision upholding the court-stripping provision most recently approved by Congress in the Military Commissions Act of 2006.
“A majority of the Court, in other words,” the detainees’ lawyers said, “has left open the possibility that this Court’s holding in this matter might be held erroneous and that it might therefore be appropriate to allow petitioners’ habeas cases to proceed in the district courts at some later date. Under these circumstances, it would be premature for this Court to allow issuance of the mandate, thereby effectuating its order to the district courts to dismiss petitioners’ cases for lack of jurisdiction.”
Thus, the motion contended, the Circuit Court should keep its mandate on hold until these circumstances have unfolded: (1) the detainees “exhaust” the review process that the DTA set up in the Circuit Court, and (2) the detainees then go to the Supreme Court to once again challenge the court-stripping provision that took away their right to pursue habeas claims.
With the Circuit Court’s jurisdictional decision in abeyance, the detainees’ lawyers said, their habeas pleas in District Court would not be wiped out in the meantime and they would not have to refile them there should the Circuit Court be overturned by the Supreme Court. They indicated they feared that the government would mount a new challenge to those habeas cases.
The anticipated new appeal to the Supreme Court, according to the motion, would challenge all over again the validity of the court-stripping provisions and of the more limited DTA review available in the Circuit Court. “The correctness of that jurisdictional holding is still in dispute,” they argued, “and jurisdiction remains a live issue that will be resolved with finality only after petitioners have exhausted their DTA remedies and the Supreme Court has disposed of petitioners’ certiorari petitions challenging this Court’s jurisdictional holding.”
Their new motion, the lawyers said, will aid them “in receiving a speedy review of the constitutional issues presented in their habeas petitions once their DTA claims are exhausted.”
The government is expected to resist this maneuver shortly.
The Circuit Court is likely to move with some dispatch in dealing with this and other procedural maneuvers. Two Justices of the Supreme Court indicated last Monday that the Court would be watching to see if there were “unreasonable” delays in the DTA proceedings, “or some other and ongoing injury” and may be prepared to step back into the controversy.
UPDATE 6:50 p.m.
When the D.C. Circuit holds a hearing next month on the procedures it will follow in reviewing Guantanmo detainees’ continued imprisonment, it will confront sharply conflicting suggestions from the two sides. The detainees’ lawyers want a wide-ranging inquiry, arguing that their liberty is at stake and thus they are entitled to significant procedural protections that would force the government to go further to justify their continued captivity. The government wants a strictly limited review in court, arguing that wartime conditions require that the military be left with broad discretion to deal with “combatants” without intrusion by the courts that would raise fundamental separation-of-powers questions.
In a filing on March 26 (now available here), the detainees recommended that the Court allow them to gather additional evidence to use in challenging the military’s continued designation of them as “enemy combatants” who must remain confined, they asked for further access to classified materials about their clients’ cases, they sought a “special master” named to resolve procedural matters and to iron out factual disputes, and they called for a rapid review process leading to early resolution.
The Justice Department’s response, filed Monday (and which can now be found here), urged the Circuit Court to limit its review to the factual record made before the military review panels with no added evidence-gathering, it called for a tighter limit on access to clients and to classified materials, saying that earlier “protective orders” led to abuses and threatened security at Guantanamo, and it opposed appointment of a “special master” to carry out any role in the process. It argued that there is a sharp difference between what the detainees might have been able to do before their habeas rights were wiped out, and the limited review it perceives as now available under DTA.
These are among the key issues that a three-judge panel will explore beginning at 9:30 a.m. on Tuesday, May 15. On the panel will be Chief Circuit Judge Douglas H. Ginsburg and Circuit Judges Karen LeCraft Henderson and Judith W. Rogers.
