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Government: Detainees outside Constitution

The Bush Administration, insisting that Guantanamo Bay detainees “enjoy more procedural protections than any other captured enemy combatants in the history of warfare,” urged the Supreme Court on Tuesday to deny them any further legal remedies for their captivity. Specifically, the government brief argued that the Court should leave intact the “longstanding constitutional rule” that such detainees “may not invoke the protections of our Constitution.”

In a 74-page brief on the merits, filed jointly in Boumediene v. Bush (06-1195) and Al Odah v. U.S. , U.S. Solicitor General Paul D. Clement argued that Congress has given the prisoners “a constitutionally adequate substitute for challenging their detention,” so they have no need for traditional habeas remedies even if those were found to exist. The brief can be found here.

The “political branches” — Congress and the Executive — have struck “an appropriate balance” between freedom and the need to keep enemy combatants from returning to the battlefield against the U.S. , Clement contended. Quoting Justice Stephen G. Breyer in an opinion in a detainee case last year, the federal brief said that the the interbranch consultation “strengthens the Nation’s ability to determine — through democratic means — how best” to deal with national security threats during “an ongoing military conflict.”

At this stage, Clement suggested, the Court should not rule on the underlying question of whether the detainees’ imprisonment is legally justified. That should be left to the D.C. Circuit in the first instance, he argued..  Should the Court reach the merits, though, Clement added, it should find that the detention “is lawful.”  For that assertion, the Solicitor General relied on the 9/11 Resolution passed by Congress in 2001.

The detainees at Guantanamo Bay who are involved in the two cases, the brief said, “are properly detained because they have been determined by a military tribunal to be ‘part of or supporting Taliban or al Qaida forces.” They may challenge that finding in the D.C. Circuit, “but they have provided no basis for upsetting that determination at this preliminary stage.”

The brief strenuously contested the detainees’ argument that they have a constitutional right, under the Suspension Clause, to pursue habeas relief in U.S. District Courts and that right “trumps” the alternative remedy Congress provided at the Circuit Court.

“First,” Clement said, “as aliens held outside the sovereign territory of the United States, [these detainees] enjoy no rights under the Suspension Clause. Second, even if they could invoke the Suspension Clause, it would not entitled them to relief because they seek an expansion of the writ well beyond its historic scope.  And third, the [Detainee Treatment Act] in any event provides an adequat ealternative to any habeas rights [these detainees] may have.”

In defending the DTA process before the Circuit Court as an adequate substitute for traditional habeas review, the brief said that this issue is to be measured by a different “yardstick” — that is, habeas has only a “limited and deferential role” when asserted “in the context of wartime detentions.”

Clement’s recommendation that the Court let the DTA process run its course before any ruling by the Justices on the merits of the prisoners’ captivity was based in part on an argument that the Circuit Court needs to sort out just how that process is to work. “Important questions remain subject to consideration or elaboration as to the scope of the review available under the DTA and will be fleshed out on a case-by-case basis.”  (There are presently about 130 DTA cases pending at the Circuit Court, and the procedures remain very much in dispute between the government and detainees’ lawyers.)

The brief, in discussing the DTA process, told the Court that some of the complications that have developed in the Circuit Court are traceable to the detainees’ lawyers. “The volume and nature of challenges that the detainees have made…have had an impact on the process,” Clement said.

The brief does not answer directly the complaints that military officers have made publicly about the alleged inadequacy of the military review process that precedes DTA review — that is, the work of the Combatant Status Review Tribunals.  (CSRTs determine if a prisoner is or remains an enemy combatant, thus justifying continued detention. It is that kind of finding that the Circuit Court is to review in the DTA process.)

Only in concluding pages of the brief does the government make its backup argument about power to detain the Guantanamo Bay prisoners — the claim of “inherent” presidential authority, based on the Constitution’s Article II.

Four amicus briefs that were immediately available can be found here, and here, and here, and here

Meanwhile, the government also filed on Tuesday a reply to a pending petition in the Supreme Court by a Guantanamo detainee who claims permanent U.S. resident status (Paracha v. Bush, 07-153). Arguing that Saifullah Paracha, a Pakistani national and citizen, has forfeited his permanent resident status by leaving the U.S. , Clement contended that he should not be treated any differently in legal terms than other aliens at Guantanamo. The brief in opposition urges the Court to hold the case until after it decides the Boumediene/Al Odah cases.