Government ordered to broaden DTA record
on Aug 11, 2007 at 11:04 pm
The D.C. Circuit Court on Friday ordered the Justice Department fo provide a broader file of information for the Circuit Court to review as it considers the first case by a Guantanamo Bay detainee challenging a military decision to keep him confined as an “enemy combatant.” In a one-page order in Paracha v. Gates (docket 06-1038), the Circuit Court also interrupted a briefing schedule that was under way, and ordered a new schedule that would not be completed until Dec. 7. It also scuttled a plan to hold a hearing in that case on Sept. 17.
The case involves Saifullah Paracha, a Pakistani citizen who has a permanent U.S. resident visa and hopes to return to this country to live. His challenge to his detention is the first to proceed in the Circuit Court under the Detainee Treatment Act of 2005, setting up the first actual civilian review of an “enemy combatant” determination by the Pentagon’s system of Combatant Status Review Tribunals (CSRTs).
The Circuit Court, in a ruling in other cases on July 20, laid down some basic ground rules on how it will proceed in DTA cases, beginning with Paracha’s. The decision partly rejected the government’s contention that the Circuit Court has only a narrow authority to review DTA cases. Instead of confining itself to the record that a CSRT actually saw in making a “combatant” determination, the Circuit Court said, it will insist on seeing all information “reasonably available” to the government, plus any information offered by a detainee. That decision came in the combined cases of Bismullah v. Gates (06-1197) and Parhat v. Gates (06-1393).
Paracha’s opening brief in his case was filed last month, under a previously set briefing schedule. But his attorneys asked the Circuit Court to suspend the briefing schedule and delay the planned Sept. 17 hearing because of a need for both sides and the Court to take account of the Bismullah decision.
That is what the Circuit Court did in Friday’s order. It stopped the briefing schedule set on April 9, took the case off the argument calendar, ordered a new briefing schedule, and told its clerk to put the case in the pool for random assignment to a three-member panel. In addition, the order includes this paragraph: “FURTHER ORDERED that by September 13, 2007, respondent [the government] file a revised certified index to the record, as record is defined in Bismullah v. Gates…”
Under Rule 17 of federal appeals court rules, as well as under the Circuit’s own local Rule 17, review of a government agency action requires the agency to file “a certified copy of the entire record” that was before the agency, or at least parts that the parties agree to designate. The local rule requires a certified list of the contents of the record before the agency.
In Paracha’s case, however, the Bismullah decision appears to expand the record that must be covered by the certified list beyond what a CSRT in his case actually had before it, to include the added information in the government’s possession about him. or items that he and his lawyers want included..
The government’s filing of the index on Sept. 13 or before could set up a conflict with Paracha’s lawyers, if the government file does not expand as much as those attorneys believe it should. It also could trigger a new request by his lawyers for the right to conduct “discovery” to generate additional information that may be held somewhere within the government. UPDATE Sunday morning: Paracha’s lawyers indicated just how extensive they expect the record to be in a letter dated Friday to the Justice Department. The letter can be found here.
Under the new briefing schedule ordered Friday, Paracha’s brief is due Oct. 23, the government brief on Nov. 23, and Paracha’s reply brief on Dec. 7.
Meanwhile, Paracha’s lawyers last Tuesday filed a petition for review in the Supreme Court (Paracha v. Bush (07-153). That is an attempt to revive Paracha’s habeas challenge to his capture and detention at Guantanamo — a question separate from the scope of his rights under the DTA to challenge the CSRT ruling finding him to be an “enemy combatant.” The certiorari petition in 07-153 goes to the core question of his detention, not the CSRT case against him. His lawyers want the Supreme Court to expand the scope of its review of detainees’ legal rights when it considers, next Term, two cases on that question — Boumediene v. Bush (06-1195) and Al Odah v. U.S. (06-1196). Those cases involve foreign nationals being held at Guantanamo who have no ties to the U.S., in contrast to Paracha’s status as a person eligible to live in the U.S. as a permanent resident alien. He has not lost his green card confirming that status.
