Detainees agree to fast track, oppose interim delay
on Feb 20, 2008 at 2:59 pm
Lawyers for Guantanamo Bay detainees joined the federal government on Wednesday in urging the Supreme Court to act quickly on a new Justice Department appeal on the legal rights of the prisoners, but said the Court should then deny that appeal and refuse any further delay in lower court action. In a response to the Department’s stay application (07A677) and motion to expedite, the detainees’ counsel agreed that the government appeal should be considered by the Court at its Conference March 14, but that, if the Court — over detainee objection — does agree to hear the case, it should do so on even a faster schedule than the government proposed so that a decision would emerge this Term. The response is available here.
When U.S. Solicitor General Paul D. Clement last Thursday appealed the case of Gates v. Bismullah (07-1054), he simultaneously asked the Court to expedite the appeal and to block any further action in the D.C. Circuit Court in detainee cases until two weeks after the Justices resolve the new appeal. If review if granted, Clement suggested a schedule that would have the Court hold oral argument May 14. The detainees’ counsel said on Wednesday that this schedule could be speeded up by about two weeks “so that these cases can proceed to the merits as quickly as possible”; that would indicate an oral argument might be held in late April.
Both the government’s request for a stay, filed with Chief Justice John G. Roberts, Jr., and its motion to expedite consideration of Bismullah, filed with the full Court, are expected to be considered by the Justices at their Conference on Friday. If expedition is granted, then the Court would specify a schedule for the two sides’ written filings and may indicate when it would consider granting or denying the petition itself.
The new Bismullah case involves a dispute over the nature of court review, by the Circuit Court, of military decisions to designate Guantanamo captives as enemies who must remain confined. Clement suggested that the issues in that case are “intertwined” with legal questions the Justices already are considering in the pending cases of Boumediene v. Bush (06-1195) and Al Odah v. U.S. (06-1196), heard on Dec. 5 and now on the way toward a decision.
The detainees’ lawyers, however, countered on Wednesday that the two controversies are separate, that the constitutional issues in Boumediene/Al Odah will not determine the outcome of the enemy designation review by the Circuit Court, since that review is simply an exercise in interpreting a federal statute — the Detainee Treatment Act of 2005, which assigned the Circuit Court the role of examining the legal adequacy of enemy declarations by Pentagon panels.
In fact, the new response argued, the Bismullah case is in such a preliminary stage that there not only is nothing final from the Circuit Court in it for the Supreme Court to judge, and there has not yet been a single case in which the Circuit Court has weighed the adequacy of a Pentagon ruling that an individual was an “enemy combatant.” Thus, the detainees’ lawyers argued, the Solicitor General has not shown that there is a real chance the Supreme Court will agree to hear the Bismullah appeal or, if it does, that it would overturn the Circuit Court.
In opposing the government request for an interim stay, while the Supreme Court considers and then acts on Bismullah, the detainees’ response laid out a scenario that would mean some of the detainees would have been imprisoned as long as nine years before the Circuit Court ever got around to considering whether they were being properly held at Guantanamo.  “Entry of a stay in this case would cast a cloud, if not an affirmative injunction against the efforts of any detainee to obtain relief pursuant to the DTA, whether or not a party to this case. Many detainees may have different, or even more compelling grounds for relief. All detainees should be permitted to press their claims before the Court of Appeals without any further delay.”
