Circuit Court seeks detainees’ response on rehearing

The D.C. Circuit Court on Thursday ordered lawyers for Guantanamo Bay detainees to react to the Justice Department’s request that the full court reconsider the July 20 decision spelling out how the first civilian court review of detention rulings will be performed. The Department had filed for rehearing en banc on Sept. 7, arguing that the Court’s decision will raise risks to national security and impede actions against potential terrorists.

In a one-paragaph order, the Court sought a response by 10 a.m. next Wednesday, Sept. 26, in the cases of Bismullah v. Gates (Circuit docket 06-1197) and Parhat v. Gates (06-1397). The Court said the Justice Department would be allowed to file a reply only if the Court orders one. Thursday’s order can be found here.

Under the Court’s rules, a rehearing would not ordinarily be granted unless a response were sought. If the Circuit Court were to refuse rehearing before the full ten-judge bench, the Justice Deparrtment would then appeal the Bismullah/Parhat ruling to the Supreme Court.

The Bismullah/Parhat ruling involves claims by Guantanamo detainees under the Detainee Treatment Act of 2005. This method of civilian court review of miiitary detention rulings was Congress’ chosen alternative to habeas after the lawmakers moved to wipe otu all Guatanamo habeas proceedings in District Couts. The removal of habeas authority was reenacted in the Military Commissions Act of 2006.

The D.C. Circuit upheld the MCA withdrawal of habeas in two combined cases that the Supreme Court has agreed to decide in its new Term starting Oct. 1. (The cases are Boumediene v. Bush, now docketed in the Supreme Court as 06-1195, and Al-Odah v. U.S., 06-1196). The Justices have not yet set a date for oral argument in Boumediene/Al Odah, but attorneys involved have said that a tentative date of Dec. 5 has been discussed. The Court will set a date when it releases its December argument calendar.

Although the Circuit Court’s Bismullah/Parhat decision is not directly at issue in the coming Supreme Court cases, attorneys for detainees in their filings in Boumediene/Al Odah have sharply criticized the DTA process as an inadequate substitute for habeas.

Meanwhile, in another development involving Guantanamo detainees, U.S. District Judge Ricardo M. Urbina in Washington on Thursday ordered the dismissal of all 16 habeas cases pending in his Court. Those cases involve challenges by at least 40 Guantanamo prisoners.

Although other judges have refused Justice Department requests to dismiss pending habeas cases under the authority of the Circuit Court ruling in Boumediene/Al Odah, Judge Urbina’s order said that the ruling had established for the Circuit the law that habeas jurisdiction has been withdrawn. He dismissed for lack of jurisdiction, but did so without prejudice to pursuing habeas anew if it were to be restored.

Judge Orbina’s order can be found here..