Detainee ruling put into effect by Circuit Court
on Jun 20, 2007 at 5:34 pm
The D.C. Circuit Court on Wednesday, after pondering the issue for more than two months, on Wednesday refused to delay any longer putting into effect its decision that Guantanamo Bay detainees have lost all rights to pursue habeas challenges to their prolonged imprisonment. In a brief order, the panel that ruled against the detainees on Feb. 20 formally denied a request filed in April by detainees’ lawyers not to issue the mandate and to hold the cases on its docket for several more months. The panel that had issued the Feb. 20 ruling, though split 2-1 then, unanimously denied the motion to hold the case, giving no explanation. It also found moot other requests by detainees’ lawyers for legal relief. The order can be found here.
The mandate had been scheduled to be issued, in the normal course, on April 13, but detainees’ lawyers asked before that for a delay. The Justice Department opposed that, noting that the Supreme Court had denied review on April 2 of the Circuit Court’s ruling that Congress had taken away the courts’ habeas jurisdiction over detainee cases. Since then, there had been no word from the Circuit Court on the matter.
Wednesday’s order implementing the February decision appears likely to lead to two quick reactions:
First, detainees’ lawyers had indicated that, if the Circuit Court did issue its mandate, they would promptly return to the Supreme Court for an emergency order to maintain the status quo until they could pursue another appeal to the Justices.
Second, the Justice Department appears likely to act quickly to get 12 District Court judges in Washington to dismiss habeas challenges by scores of detainees, and also to wipe out so-called “protective orders” that assure the detainees’ lawyers access to their clients at Guantanamo and access to information the military may use to justify continuing to hold them.
The Supreme Court, meanwhile, is considering a request by detainees’ lawyers to reconsider its April 2 denial of their appeals. Action on rehearing petitions in Boumediene v. Bush (06-1195) and Al Odah v. U.S. (06-1195) could come at any time.
With the Supreme Court still involved, at least for the moment, developments are likely to grow even more complex in coming days. Detainees’ lawyers could be back at the Supreme Court swiftly in reaction to Wednesday’s Circuit Court order. But there may be other developments, too:
Detainees’ lawyers are hoping to persuade District Court judges not to act quickly to dismiss the cases or lift the access orders as the government already had asked them to do, and very likely will renew the request quickly. Detainees’ counsel will be relying upon an order issued on June 7 by another D.C. Circuit Court panel, in a detainee case titled Al Ginco v. Bush (docket 06-5191) refusing a government motion to order dismissal of those pending habeas petitions, and leaving it up to District Court judges to decide in the first instance whether to dismiss the cases or to keep them on hold.
In addition, the D.C. Circuit may act soon on pending cases asking it to sort out how it will review the merits of detainees’ challenges to military decisions to continue to hold them as “enemy combatants.” Under the Detainee Treatment Act of 2005, detainees are given — as an alternative to habeas — a right of limited review in the D.C. Circuit of the combatant decisions by the military at Guantanamo. The Circuit Court is working out the procedures on how to handle those cases, so that they can go ahead on the merits.
If the detainees do return to the Supreme Court quickly, they would be asking the Court — initially, Cheif Justice John G. Roberts, Jr. — to put the D.C. Circuit’s Feb. 20 ruling on hold until after the Circuit Court rules on the DTA challenges, and the detainees can file new appeals to the Supreme Court, once again contesting the court-stripping provisions that took away habeas rights.
In addition, another detainee’s lawyers may file an appeal to the Supreme Court in the wake of a separate order by the D.C. Circuit Court denying a plea to stay its mandate in a case rejecting that detainees’ legal challenge. The case involves Saifullah Paracha, a Pakistani businessman now detained at Guantanamo as ab; he was a lawful permanent resident alien in the U.S. In February, the Supreme Court denied his request for release from the Guantanamo prison camp in order to receive medical care for a heart ailment. The Court at that time denied, without comment, his petition for certiorari (06-8447), for an original habeas writ (06-8448), and a writ of mandamus (06-8449).
Since then, the D.C. Circuit on April 9 ordered his habeas challenge dismissed by a District Court, based on the Circuit Court’s Feb. 20 detainee ruling. Paracha’s petition to the Supreme Court would be due by July 9.
