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Primer on detainees’ status now — Part II

No part of the Bush Administration’s campaign against terrorism has drawn more sustained challenge — legally, politically and diplomatically — than its policy on handling of individuals who are captured and then held in detention for prolonged periods, usually outside the U.S. mainland. Four times, the Supreme Court has reviewed facets of this policy, leading to changes or to entirely new detainee review procedures in the military or in civilian courts. More recently, however, the Court or Chief Justice John G. Roberts, Jr., acting alone, have refused to hear or have rejected new challenges by detainees’ lawyers. As a result, the detainees’ legal fate in coming months will rest largely (though not exclusively) in the hands of lower courts. This is the second of two lengthy posts on the current status of the detainee question. Part I appeared Saturday.

UPDATE Friday May 18: The transcript of the Circuit Court’s May 15 hearing can be found here.

Part II — The D.C. Circuit — to the Fore

Now that the Supreme Court has opted — for the time being, at least — to withdraw from the center of the ongoing controversy over the legal rights of individuals captured in the “war-on-terrorism,” the D.C. Circuit Court becomes the primary focus of activity, and it will remain in that prominent position for the next few months, at least. It has so many detainee cases already on its docket, with others coming, that Court aides have grown concerned about how all will be handled. Out of the welter of activity, however, are likely to come significant rulings that will set the stage for new appeals to the Supreme Court.

This heightened activity moves into public view next Tuesday morning at 9:30 a.m. At that hour, Chief Circuit Judge Douglas H. Ginsburg and Circuit Judges Karen LeCraft Henderson and Judith W. Rogers will take to the bench for a hearing that is scheduled to last only 40 minutes, but has major potential for shaping the Circuit Court’s work on detainees in coming weeks and months.

The dispute before the Circuit Court now is nothing less than a fundamental disagreement over whether that Court will make a searching inquiry into detention orders of the military, probing deeply into what detention panels considered (or left out), based on an entirely new and potentially much broader record, or, instead, will make only a far more limited assessment of the military panels’ conclusions based only on the record such panels considered.

The cases involve an Afghan, Haji Bismullah (his case is Bismullah v. Gates, Circuit docket 06-1197), and seven members of a persecuted Muslim Chinese minority, the Uighurs, with the lead petitioner Huzaifa Parhat (their case is Parhat, et al. v. Gates, 06-1397), but the outcome will affect the legal futures of scores, even hundreds, of detainees. As government lawyers said in one of their filings, “the ruling in the present cases is likely to provide guidance for all cases filed under…the Detainee Treatment Act.”

The Bismullah and Parhat cases are unusual ones for a federal Circuit Court to be handling. They are not appeals from a prior District Court ruling, and they are not appeals from a federal agency decision. Rather, they are new cases that, under the DTA, can only be filed in the D.C. Circuit Court, with the sole task of the Court to pass upon findings by U.S. military “Combatant Status Review Tribunals” that determine whether an individual is properly detained as an “enemy combatant.” An individual so classified must remain a prisoner, unless the military opts to send them to another country.

(CSRTs were set up by the Pentagon at Guantanamo Bay after the Supreme Court ruling in Hamdi v. Rumsfeld in 2004 that, while the military may take terrorism suspects into custody in combat zones, it must provide a neutral decisionmaker to weigh their continued or prolonged detention. Congress has never written a law controlling the CSRTs, leaving those details to the Pentagon. But Congress has recognized such panels in setting up a system in the D.C. Circuit for review of their findings.)

In its review of CSRT findings, the Circuit Court will be fashioning its own procedural path for litigating DTA cases; the Act does not spell out procedures for that review. The Act says that the Circuit Court must weigh the status findings to see if they were “consistent with the standards and procedures” the Pentagon has written for the CSRTs, plus issues of legality under the Constitution and U.S. laws “to the extent [they] are applicable.” (Since the D.C. Circuit Court, in a Feb. 20 ruling against the detainees in their challenges to the loss of habeas rights, has ruled that those at Guantanamo have no constitutional rights, it is unclear at this stage whether the detainees have any constitutional claims to raise about the CSRT process.)

Each of the eight individuals involved in these two cases has raised a variety of challenges to their original capture and their continued detention at Guantanamo Bay, Cuba. Bismullah has been there since soon after he was captured in Afghanistan in 2003; the Uighurs have been at Guantanamo longer, soon after their capture in Pakistan in December 2001. The Circuit Court, however, has ordered their attorneys not to file any written arguments on the merits of those legal claims; this opening proceeding is about procedural questions only, though they are questions of considerable moment nonetheless.

Bismullah contends that he has never been an “enemy combatant,” contrary to a finding by a military CSRT. He contends that his arrest was based on a false accusation that he was passing information on U.S. troop movements to the Taliban regime in Pakistan — assertions that the government disputes. The Uighurs contend that they fled to Afghanistan to escape oppression in China, and never fought against U.S. or allied forces. After they made their way to Pakistan, they were captured by Pakistani officials; they contend that those officials sold them to the U.S. military for a bounty — assertions that the government disputes.

As the three-judge Circuit Court was preparing for next week’s hearing, the shape of the issues it will be considering changed. On Friday, the government filed a series of documents on changes in positions it had taken earlier in the cases. The government would need the Court’s permission to make one of the changes. Lawyers for detainees privately claimed that these were last-minute switches seeking to bolster the government’s case, but they had not yet formally replied in court.

Originally, the Court had allotted only 15 minutes for each side’s oral argument; the detainees’ lawyers asked for more time, but the Court on Thursday agreed only to add 5 minutes to each side’s time.

The Bismullah and Parhat cases do not address the detainees’ challenges to the legality of the Combatant Status Review Tribunals, but conflicts between their lawyers and government counsel have produced an abundance of controversy about how to litigate cases under the Detainee Treatment Act. The deepest conflicts have arisen over two issues: lawyers’ access to the detainees at Guantanamo, to prepare to represent their clients in the DTA process, and detainees’ lawyers access to classified information considered by CSRT panels.

Those attending Tuesday’s oral argument will be hearing a good deal about “protective orders.” As the detainees’ lawyers put it in one of their filings: “All parties agree that a protective order is necessary.”

Since much of the military’s information about detainees, and the role that information plays in military judgments that they are “enemy combatants,” is classified, the detainees’ habeas cases and now the DTA reviews have always involved the felt need for procedures on access and limits on distribution of this information outside military circles — most especially, to civilian lawyers for the detainees. Civilian lawyers have had to obtain security clearances in order to have any access to this information, and protective orders previously issued in District Courts have restricted what they must do with such information.

Within the scope of protective orders also is the question of lawyers’ access to meet with their clients in person at Guatnanamo Bay, and the confidentiality of their lawyer-client exchanges.

The military leaders at Guantanamo and in the Pentagon hierarchy have long been uncomfortable with the impact, as they see it, on the discipline and security of the prison camp of having lawyers meeting with detainees. With the prison set up in Guantanamo specifically to avoid getting into legal complications over the detainees’ fate, but with the Supreme Court having frustrated that goal, at least in part, the military has struggled to adapt to the requirements of legal representation.

The problem, according to military officials, began shortly after a federal judge in a series of detainee cases had issued a “protective order” giving detainees’ lawyers access to classified materials and access to their clients. “Almost immediately,” the government has told the Circuit Court in a filing, “serious problems and disagreements arose over the implementation” of that order.” In addition,” it went on, “conduct by private attorneys involving mail and visits to the military base at Guantanamo resulted in situations threatening the safety and security of Guantanamo military personnel and detainees as a result of inadequacies in the protective order.”

The complaints have only grown louder in recent months, and some Pentagon officials mounted public criticism of lawyers, accusing them of being a major part of the problem of deteriorating security at the camp. Detainees’ lawyers have rejected the complaints about their role and their activities at the prison base, and have accused the military of seeking to curtail their opportunity to represent their clients, impairing or even destroying clients’ trust in their lawyers.

When the first DTA case arrived at the Circuit Court, both sides suggested that that Court adopt its own “protective order.” The detainees’ lawyers asked for the same provisions as the federal judge had provided in the order so resented by the military. The Justice Department proposed a new order, with significant changes. That dispute will be a central focus of Tuesday’s argument. But there are other procedural conflicts that also will get aired.

Here are the specifics of the main disputes:
(1) Lawyers’ access to clients in the Guantanamo Bay prison camp
The original “protective order” issued in District Court put no limit on the number of visits a civilian lawyer could have with a detainee client at Guantanamo. The judge had concluded that it was “simply impossible” for detainees “to grapple with the complexities of a foreign legal system and present their claims [in court] without legal representation.” The attorneys have argued repeatedly, as they now do in the Circuit Court, that “only through client visits” can counsel learn facts about the detainees and how they are faring in the CSRT process, and develop and maintain trust with their clients.

The government had proposed that the Circuit Court limit lawyers’ access to their clients at Guantanamo to three visits, throughout the complete DTA review process. These visits would be allowed for any lawyer for a client who had signed a document naming that lawyer as his legal representative for DTA proceedings. Since the Circuit Court will only be engaging in “administrative review” of the record made before the CSRT, the government argued, three visits should be sufficient.

This three-visit limit has stirred a wide array of protests by lawyers’ organizations; indeed, several of them filed an amicus brief in the Bismullah and Parhat cases, strenuously protesting this provision. The Association of the Bar of the City of New York, outside of court, wrote to Attorney General Alberto Gonzales, asking him to withdraw that limit and other restrictions on counsel access and activity at Guantanamo, saying those provisions “would pose novel and onerous intrusions on the attorney-client representation in any circumstance. At Guantanamo, they would have the practical effect of thwarting effective representation and precluding any adequate judicial process.”

On Friday, that aspect of the controversy appeared to have changed markedly. The Justice Department filed a revision of that part of the protective order, striking out the limit to three client visits. It said, however, that all other parts of the order remained necessary as submitted. It will need the Court’s permission to modify its proposal at this stage in the proceedings.

(2) Lawyers’ right to gather evidence outside the CSRT record
Detainees’ lawyers have urged the Court to assure them the opportunity to make “reasonable discovery” of information that would exist outside the record as it was made before the CSRT, for use in challenging CSRT decisions before the Circuit Court. It would not be a meaningful court review of the CSRT process, they have argued, if the Court could not look beyond the original record at added information that would test the basis for the “enemy combatant” findings.

The CSRT record, the lawyers contend, may not include all of the evidence that a CSRT panel considered, evidence that the panel did not consider, evidence about the reliability of the materials before the CSRT, and evidence to test whether the CSRT followed the required procedures.

The government argues that the DTA review should be strictly confined to the record. The DTA process, it says, is not as wide-ranging a review as habeas corpus would be; it is essentially only a review of an administrative body, and such judicial review long has been confined to the record developed by such a body. “A strong showing of bad faith must be presented before this Court will look behind an agency’s compilation of the record,” the government has told the Court. “Such a showing has not been made here.”

In another of the government’s new filings on Friday, it informed the Court that the Pentagon had written new procedures to allow detainees to offer “new evidence” beyond what was in the CSRT record. That evidence, however, would not become a part of the CSRT record being reviewed by the Circuit Court in the DTA process; rather, it would have to be sent to Pentagon headquarters, where officials would decide whether it is significant enough to call for a new proceeding before a CSRT. It is unclear how that change would affect the way the Circuit Court reacts to the detainees’ plea to get information for DTA review beyond what was before a CSRT panel.

(3) Lawyers’ access to classified information
For months, detainee lawyers have complained that CSRTs have refused to share with them classified information that was before a CSRT. They thus want their discovery requests to include the classified data that was in any way a part of the CSRT proceeding, and a wide array of official correspondence and diplomatic exchanges, and underlying documents that form the basis of the government designation of a detainee as an “enemy combatant.”

They object to a proposal of the government to leave it to the discretion of government officials to decide whether detainees or their lawyers have access to “any classified information,” and a suggestion that access to such secret material will be allowed only on a “need to know” basis. The government, under the proposal, would decide what information a detainee or lawyer “needs to know.”

Government officials insist that, despite the strong complaints of detainees’ lawyers of denial of access to classified information, very little actually has been withheld from them. Still, the government argues that it must be left with the discretion to protect vital national security information, so it must control access to such data.

(4) Use of a special master
Because of inevitable disputes over what information should be gathered for the DTA review process, the detainees’ lawyers have suggested that the Circuit Court appoint a “special master” with the authority to resolve disputes over discovery, decide some factual disputes, and to hold hearings, perhaps on short notice, and hold conferences between the parties, to keep the cases moving.

The government says there is no need for such a new court officer to aid the DTA process. “These cases are standard administrative law matters that should not necessitate the assistance of a special master,” the Justice Department said in one of its filings.

(5) Confidentiality of lawyer-client exchanges
Because of conditions inside the prison camp at Guantanamo, detainee lawyers have argued, trust between the detainees and their lawyers “is dying.” They thus want provisions in a “protective order” that will assure confidentiality for genuine attorney-client exchanges. One of their fears, which they say has been realized in fact, is that detainees will come to believe that the lawyers are not working for them, but actually are working for the government.

The government, however, contends that it is running a prison at Guantanamo, for dangerous individuals who were involved in terrorism, and it must be able to monitor exchanges that may potentially expose classified information to detainees. It thus has proposed official review of exchanges between lawyers and detainee clients. The Pentagon would name a separate filtering team, working with Justice Department lawyers who are not a part of the Justice Department staff defending the CSRTs in the DTA process, to examine whether attorney-client mail involves attorney-client privileged material, and whether it involves classified information, and may share that with the Circuit Court to assure its protection. Only the Court could authorize its release for use in the DTA process.fR