Government urges swift rejection in detainee cases
on Jun 19, 2007 at 6:55 pm
The Justice Department, responding in half the time the Supreme Court had allowed it, urged the Court on Tuesday to promptly reject a plea by Guantanamo detainees’ to reconsider the denial of their appeals. Any such reconsideration, or even delay, U.S. Solicitor General Paul D. Clements said, would only result in confusion in the lower courts and spawn even more “unusual filings” to try get the Justices involved.
The Court on April 2 denied review of two appeals in Guantanamo cases — Boumediene v. Bush (06-1195) and Al Odah v. U.S. (06-1196) — and thus left intact, for the time being, a D.C. Circuit Court ruling in February that Congress had taken away the detainees’ rights to pursue habeas challenges to their prolonged detention. A week later, on April 27, lawyers for the detainees asked the Justices to reconsider their appeals, or, at least to delay acting on the rehearing requests.
On June 4, the Court asked the Justice Department to react, and gave it 30 days to do so. Saying that “all parties to the litigation would benefit from a prompt disposition of the rehearing request,” Clement filed the response Thursday — noting that it was early (by 15 days). He asked the Court to deny the rehearing pleas, and the request to delay action on them. The brief in opposition can be found here.
Under the schedule that the Court had specified, the government brief would not have been due until early July, And, although that likely would have been after the Court had recessed for the summer, it probably would have acted on it sometime during the summer rather than waiting until October. The early filing by the government sets up the chance of action before the recess. Under the Court’s Rules, the detainees’ lawyers probably do not have the option of filing a reply to the new Justice Department filing. Thus, the Court could consider the rehearing pleas as early as its Conference on Thursday.
The government brief argued that the D.C. Circuit is acting “with dispatch” to lay down rules for reviewing the military’s decisions to hold Guantanamo prisoners as “enemy combatants” — rules that will govern how the Circuit Court reviews at least 90 appeals now pending in that Court. Moreover, the brief said, the D.C. Circuit is already moving ahead on the merits of the first such appeal, with an opening brief due July 16 and argument set for Sept. 17.
Thus, what is happening in the Circuit Court, the Solicitor General said, is exactly what the Court indicated it expected to happen when it denied review of the two Guantanamo appeals in April. (Two Justices who joined in the denial said they did so to allow the prisoners to pursue legal remedies still available before the D.C. Circuit; three Justices said they would have granted the appeals. It will take a majority of the Court to grant rehearing.)
The detainees’ lawyers fear the review process at the D.C. Circuit, under the Detainee Treatment Act of 2005, will be inadequate, and far from the broad review they would have expected under habeas procedures. Those attorneys also are maneuvering to keep intact lower court orders that give them greater access to their clients at Guantanamo, and greater access to information used by the military to justify continued detention. Their rehearing petitions to the Supreme Court are part of a larger strategy to maintain that access.
The Solicitor General argued on Tuesday that the detainees will have ample opportunity to return to the Supreme Court, once the D.C. Circuit has made decisions on the DTA review process, and on individual combatant status rulings. In the meantime, he contended, the Supreme Court needs to end the uncertainty about what it will do, so lower courts may continue to move ahead.
Clement noted that the D.C. Circuit had not yet put its February ruling against habeas for detainees into formal effect. Thus, he said, many habeas cases that supposedly were cut off by that ruling remain in the District Courts.
“As a result,” the Solicitor General’s brief said, “both the habeas cases and the DTA cases are pending simultaneously, and each set of cases may be governed by separate orders or other requirements, resulting in potentially conflicting obligations. If this Court defers consideration of the petitions [for rehearing], this double-track litigation will likely continue, with a third track likely in the form of new filings in this Court, causing increased burdens on the parties and the courts, in direct contravention of Congress’s intent” in passing the DTA in 2005 and the court-stripping provisions of the Military Commissons Act of 2006.
If rehearing is promptly denied, Clement went on, that will “eliminate this confusion and put the focus on the processing of DTA claims in the D.C. Circuit, after which detainees may seek review in this Court on a fully developed record as to the review afforded by the DTA.”
The brief contended that the petitions for rehearing do not satisfy the strict requirements that the Court’s rules lay down for granting such “an extraordinary remedy.”
