With the government on the verge of pursuing a new appeal to the Supreme Court to clarify legal issues surrounding the role of the courts in Guantanamo detainee cases, a lengthening list of actions in the D.C. Circuit Court is adding deeper complexity to the controversy. Sparring by lawyers on each side of the controversy continues almost daily, without definitive results so far. The inaction may well have an effect on what the Justice Department asks when it files its new appeal to the Justices — a filing now set for Thursday.

The Justice Department has at least 12 pending motions that seek delay of Circuit Court deadlines in cases involving prisoners at Guantanamo Bay, Cuba, with no way of knowing the fate of any such filing, even as it goes into the final stages of preparing to move on to the Supreme Court this week. A 5-to-5 split among the ten judges on the Circuit Court, revealed in an important development on Feb. 1, may be a complicating factor — not only for what happens in already pending cases there, but also for what could happen if the Circuit Court is assigned added duties by the Supreme Court once the Justices do take new action.

The two-track process that had been unfolding on the legal rights of detainees — one in the Supreme Court, one in the Circuit Court — is about to reach an intersection. What will happen at that point is increasingly uncertain. Some clarity may emerge after the Court reacts to the new appeal it will receive Thursday.

Since Dec. 5, the Supreme Court has been weighing the issue of whether Guantanamo detainees have any constiutitonal rights to challenge their detention, and what court review would be available to them. And, for nearly two years, the Circuit Court has been wrestling with one form of court review created by Congress — a review that would replace court consideration of habeas petitions seeking detainees’ release. This alternative form of review involves passing upon the validity of military decisions to designate Guantanamo prisoners as “enemy combatants” who must remain in captivity. The Circuit Court, so far, has not moved forward to consider even one such review on the merits; the lead case in the pipeline (Paracha v. Gates, Circuit docket 06-1038) has been pending two years. It is one of the dozen or so cases in which the government is now seeking delay while it makes its planned trip to the Supreme Court.

Up to now, the Circuit Court has been working on the basic ground rules for its review of enemy designations — the procedures it will follow in Paracha and nearly 180 other cases. It has spelled out those procedures in the lead case of Bismullah v. Gates (docket 06-1197). That is the case the Justice Department is preparing to appeal this week to the Supreme Court, hoping to get the Justices at least to take the issues in that case into account as it prepares to decide the detainee rights cases the Justices already heard on Dec. 5.

The Bismullah case led to a decision last July 20 (left intact by a 5-5 split on Feb. 1) that the government must produce, for court review of detainee cases, the full array of information that may have a bearing upon whether to treat a detainee is an enemy. If the government cannot produce or reproduce that file in any given case, its only option, the Circuit Court said, was to send the case back to the Pentagon for another review (before a Combatant Status Review Tribunal, or CSRT).

The government has told the Circuit Court repeatedly that it believes it is only required to produce, for court review, the record that a CSRT actually considered. It would be an onerous task to assemble everything in government files about a given detainee, and doing so might run the risk of disclosing sensitive government secrets, it has argued. That is why it is going to appeal the Bismullah decision.

The Supreme Court, in announcing last June 29 that it would hear the detainees’ rights cases, indicated it would be interested in how the Circuit Court dealt with the procedures question in the Bismullah case. The Justices said they would seek added briefing once Bismullah was decided by the Circuit Court; although it has been 11 days since Bismullah was decided by the 5-5 split, the Justices so far have said nothing about it.

But, in the meantime, the government has been asking the Circuit Court to put on hold a series of that court’s orders requiring it to produce — in Paracha and other individual cases — the wide array of information mandated by the Bismullah decision. Assembling those files, it has said, may not even be possible, so it will have to consider starting new enemy designation reviews by scores of CSRT panels.

The Paracha case illustrates the maneuvering now being done over the question of delay. The government filed its stay motion on Feb . 8, the detainees’ lawyers filed their opposition on Feb. 11, and the government filed a reply on Tuesday. So far, the Circuit Court has taken no action.

Similarly, the Circuit Court has not yet acted on a government plea to put Bismullah itself on hold pending the outcome of the appeal to the Supreme Court, or on a broader government plea to put all 180 pending detainee cases on hold while that appeal proceeds.

The government has said that, if the Circuit Court will not delay the cases pending there, including Bismullah, it will ask the Supreme Court to do so. If the Circuit Court does not act on the various stay requests prior to Thursday, the government will have to decide whether to include a stay request along with its appeal to the Supreme Court Thursday. The government also plans to ask the Justices to put its appeal on a fast track.

There is no timetable for the Supreme Court to react to the planned appeal. It could simply let it unfold in the normal course, expedite handling of it, agree to hear it or deny it, link it with the pending cases in some way, or simply sit on it until it decides the pending cases.

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