Government moves to end detainee cases
on Apr 19, 2007 at 3:51 pm
UPDATE 8:00 p.m.
Lawyers for Guantanamo detainees notified the District Court that they would formally oppose the government’s motion to dismiss all of the detainee cases, saying they will argue that the District judges do not have the authority to act on the dismissal request while the D.C. Circuit Court retains its mandate in the underlying cases. Among papers attached to the “notice of filing” were copies of motions they have filed in the Circuit Court, along with a copy of an “emergency application” that the attorneys said they would file in the Supreme Court if rebuffed by the Circuit Court. They noted that this final document had been “lodged” at the Court, not formally filed. The packet of materials can be viewed with Pacer on the District Court docket for 04-1254 (Abdah v. Bush).
* * * * *
With perhaps scores of cases involving Guantanamo Bay detainees lingering on the threshold of the Supreme Court, the Justice Department on Thursday formally asked District Court judges in Washington, D.C., to dismiss up to 185 pending cases challenging continued confinement at the U.S. military prison at a base in Cuba. The Department argued that the judges must act without waiting for the D.C. Circuit to put into effect formally its Feb. 20 ruling that no court may consider any habeas challenge by any foreign national captured in the “war on terrorism.” The motion, in the same form in all 185 cases, can be found here. (The text supplied here does not include attached exhibits.)
The filing reopened a new legal skirmish in the District Courts, thus drawing them back into the middle of the ongoing courthouse fray over detainees’ legal status — a fray that is rapidly unfolding in the D.C. Circuit, and may imminently return to the Supreme Court.
The Supreme Court on April 2 refused to review the Circuit Court’s Feb. 20 decision, and that presumably allowed the Circuit Court to issue the mandate in those cases and thus put the ruling into effect. Detainees’ lawyers, however, have asked the Circuit Court to postpone that action, so that they can continue to pursue other legal remedies — including a possible return trip to the Supreme Court. The Circuit Court has not reacted to that plea.
In the Justice Department’s dismissal motions Thursday, it said that, in light of the Feb. 20 ruling, “the law of this Circuit is settled.” In a footnote, it cited a D.C. Circuit Court concurring opinion in 1990 saying that “once an opinion is released it becomes the law of this circuit” and a 1987 opinion of that Court saying that panels are bound by the “law of the circuit.” That footnote also said that the D.C. Circuit had itself dismissed other Guantanamo-related cases since Feb. 20.
With Circuit law now established, the motion argued, “federal district courts do not have jurisdiction over cases brought by aliens at Guantanamo Bay detained as enemy combatants or awaiting determination of their status, and such aliens do not have constitutional rights.” The motion also urged the District judges to dismiss other pleadings before those judges by detainees seeking to maintain the status quo until procedures are worked out to assure lawyers access to detainee clients and to information that may be used to justify continued confinement of the captives.
The Department sought to assure the judges that, even after the habeas cases before them are dismissed, the government will still allow detainees to see their lawyers “during a reasonable period for the wind-up of this District Court litigation” and transition of the legal disputes from the District Courts to the D.C. Circuit under the Detainee Treatment Act of 2005 for review of the military’s confinement decisions.
And, the motion added, detainees’ lawyers can file simple papers in the D.C. Circuit to get the Detainee Treatment Act review process started. Once such a start has been made, the motion said, the government will agree to court orders on an interim basis assuring counsel access to their Guantanamo clients. The terms of access it said it would embrace are those it has proposed before the D.C. Circuit — terms that detainee lawyers have contended are inadequate to protect the detainees’ legal interests.
The dismissal requests were filed not only in cases involving detainees who still remain at Guantanamo, but also those who have been released and sent to other countries, or those who have been found not to be “enemy combatants.” The majority of the 185 detainees in the listed cases at the top of each motion, however, are still at Guantanamo, the motion said.
Lawyers for the detainees are expected to file a response to the dismissal motions, probably by next week. It is not yet clear when the ongoing controversy will bounce back to the Supreme Court in some further challenge by detainees who are being held at the prison in Cuba without criminal or war crimes charges. Meanwhile, the Supreme Court is scheduled to consider at its April 27 Conference whether to hear an appeal (Hamdan/Khadr v. Gates, 06-1169) by two Guantanamo prisoners seeking to go forward with their court challenge to impending war crimes trials before “military commissions.”
