Court’s next detainee cases nearer

Lawyers for Guantanamo Bay detainees on Monday filed what may be the final document in the D.C. Circuit Court to set the stage for action by that Court on issues that could soon arrive at the Supreme Court for the next round in the ongoing legal combat over Guantanamo. In a matter of days, the Circuit Court is expected to react in two cases that may, in coming months, resolve key questions on the government’s legal obligations toward the detainees it continues to hold in the military prison at the U.S. Naval base in Cuba.

Even as briefing continues in the Supreme Court in pending detainee cases (involving the right, if any, of detainees to challenge their prisoner status in federal habeas cases), the next round is developing rapidly in the Circuit Court. There, the Circuit judges are working out the procedures they will follow in providing civilian court review of military decisions to declare detainees to be “enemy combatants,” and thus to continue their imprisonment, perhaps indefinitely.

Monday’s filing by detainees’ counsel came in the in one of those cases: Paracha v. Gates (Circuit docket 06-1038). A Pakistani national, Saifullah Paracha, was the first detainee to get review by the Circuit Court under the Detainee Treatment Act of 2005 — Congress’ hoped-for substitute for regular habeas review of detainee challenges. The DTA provides a more limited court review than habeas would, and the government is attempting to keep it within tight bounds.

The new document (found here) urged the Circuit Court to move the Paracha case along, avoiding any further delay at Justice Department request. The Department has asked for at least a 30-day postponement of a court-imposed deadline for the government to provide a full documentary record to seek to justify the “enemy combatant” status for Paracha. The deadline is now Thursday of this week.

“It is not the fault of this Court or Congress that the government faces…difficulties” in producing the materials that bear upon Paracha’s status, and that of other detainees, the opposition brief argued. “The government created these difficulties for itself. The Court should not alter is construction of the DTA to accommodate the fact that the DoD was sloppy. Nor should petitioner, who is now entering his fourth year of captivity, be made to pay for the DOD’s careless mistakes.”

Ticking off those alleged mistakes, the Paracha brief said the government had done none of the following: provide Guantanamo prisoners a “meaningful opportunity to rebut the evidence against them,” employ “a fair process for determining whether a prisoner was properly held,” use “a less sweeping, subjective definition of ‘enemy combatant’,” and create a ‘documented account’ of the information” that could have been considered regarding any individual prisoner. Having done “none of these things,” the brief said, “the government must now face the consequences.”

The legal duty to provide a full account of data that might bear upon a detainee’s status stems from the D.C. Circuit’s ruling July 20 in the combined cases of Bismullah v. Gates (06-1197) and Parhat v. Gates (06-1397). In those combined cases, the government is now seeking a rehearing en banc, claiming first that it is simply unable to produce the full documentary file to the Circuit Court on time and, second, even if it could, that would gravely impair national security because of the sensitivity of some of the information involved. The government is seeking expedited action on its rehearing request. Although the Circuit Court has not yet indicated whether it will ask detainees’ lawyers for a response to the rehearing petition, detainees’ counsel on Monday asked the clerk of that Court to pass on its opposition brief in the Paracha case to the full Court for possible consideration on the rehearing plea in Bismullah/Parhat.

If the Circuit Court does not grant rehearing in Bismullah/Parhat, and if it does not grant any delay in the record-filing requirement for the Paracha case and other detainees’ DTA challenges, then U.S. Solicitor General Paul D. Clement is expected to rush to the Supreme Court for some legal help; that could come as early as this week.

The Justice Department, in fact, has indicated that it may try to persuade the Supreme Court to review the scope of the detainee status review process alongside its consideration of the habeas rights of Guantanamo prisoners, during the current Term.