Government gets delay in detainee cases

On the eve of a planned government appeal to the Supreme Court, the D.C. Circuit Court on Wednesday afternoon delayed the effect of a key part of its July 20 decision requiring the Pentagon to produce in court a wide array of information in its files about individuals being held at Guantanamo Bay, Cuba. In a curiously worded, four-page order, the Circuit Court temporarily spared the government — in eight specific cases — from having to hand over to the Circuit Court and to detainees’ lawyers anything beyond the actual evidence that Pentagon panels used in deciding to name prisoners as enemies who must be kept imprisoned at Guantanamo. Those specific records considered by so-called Combatant Status Review Tribunals are all that the Pentagon has argued it has a duty to provide, and the Justice Department is planning to appeal to the Supreme Court on Thursday to try to get the Justices to embrace that view.

The Circuit Court’s stay order can be downloaded here.

The order allows the government until Feb. 21 — a week from Thursday — to ask the Supreme Court to issue an emergency stay that would put off the effect of the Circuit Court’s July 20 ruling until after the Justices have decided whether to hear the government appeal, and have ruled on it if review is granted. The government is planning to file, along with its appeal, a motion urging the Justices to expedite the case, in hopes of having it decided during the current Term. The Court is holding a private Conference on Friday of this week, but as of now nothing is scheduled to be considered at that time regarding the new appeal or any motion to expedite. Such matters could be added at the last minute, of course.

The Circuit Court acted on the stay request in the lead cases of Bismullah v. Gates (Circuit docket 06-1197) and Parhat v. Gates (06-1397). Those are the ones that the Justice Department has been preparing to appeal this week. But the Circuit Court also applied its order to six other pending cases involving Guantanamo captives. In the eight cases, the government is not relieved of any duty, or any deadline, to produce in court the actual record heard by a CSRT in “enemy combatant” proceedings. Thus, the cases could go forward in the Circuit Court — but limited solely to that record, which detainees say may not include everything favorable to a detainee and does not include much other information held in files across the government — information the detainees’ counsel want a chance to contest.

If, as a result of Wednesday’s stay order (and a Supreme Court stay order, if one were to be issued), some detainee cases do go forward in the Circuit Court based on that limited file of information, it could be a significant setback to detainees in leveling their challenges to continued captivity under the Detainee Treatment Act of 2005. For the time being, the Circuit Court’s order amounts to a temporary suspension of the central — and most controversial — aspect of the Circuit Court’s July 20 ruling, reaffirmed by a Circuit Court panel on Oct. 3, and left intact on a 5-5 split vote by the en banc Circuit Court on Feb. 1. Although the stay order does not say so explicitly, the stay presumably would lapse if the Supreme Court were to deny the stay request the government will seek there.

The order was issued by the same three-judge panel that had decided Bismullah last summer — Circuit Judges Douglas H. Ginsburg, Karen LeCraft Henderson and Judith W. Rogers. Although all three had signed on to the July 20 decision, and a reaffirming ruling on Oct. 3, Judge Henderson broke with the panel in voting to rehear the case en banc. Because the Court split 5-5 on that request, and a majority was required, rehearing was denied.

Although there is no way of knowing what the three judges on the panel did in the nine days they were considering the government’s stay request, it is possible that other members of the full court were consulted. That’s because the Justice Department, in its Feb. 4 stay motion, had asked for a stay not only of Bismullah/Parhat, but of all 180 other cases that detainees now have pending in the Circuit Court under the Detainee Treatment Act. The final stay order that emerged Wednesday dealt with only eight of the 180 cases and it stressed it did not apply to any other cases than those specifically identified. The order also did not address the government request to stay the mandate of the July 20 decision.

The substance of the stay order, though, was precisely and narrowly tailored to one of the government’s key demands (at least for those eight cases) — a delay of any information-producing obligation other than what Pentagon investigators had specifically laid before CSRTs. By limiting its stay pending Supreme Court action on the government stay request to the Justices, the Circuit Court panel put the burden of deciding whether to prolong the delay directly on the Supreme Court’s members.

It is not possible even to speculate with confidence about what the Supreme Court will do, either with the new appeal, with the motion to expedite, or the planned stay motion. The Court already has under advisement two major detainee cases (Boumediene v. Bush, 06-1195, and Al Odah v. U.S., 06-1196) that test whether the Guantanamo detainees have any legal rights, and, if so, just how they may pursue those rights in the federal civilian courts. Those cases were heard by the Justices on Dec. 5, and presumably draft opinions have been circulating privately in them. The Justice Department, in asking the Circuit Court to stay the Bismullah/Parhat decision, said the question of the scope of the information-producing record at issue in that ruling “is directly interrelated with the questions” pending before the Supreme Court in Boumediene and Al Odah. The Supreme Court, in agreeing to hear those latter cases last June 29, said it would call for supplemental briefing in them to take account of a Circuit Court decision in Bismullah/Parhat. So far, even though that case has now been decided finally, the Court has not done so. Presumably, that issue will await the Court’s initial reaction to the motion to expedite in Bismullah/Parhat.

The panel’s stay order, by its limitation to eight specific cases, leaves in some limbo at least four other cases in which the government was under orders to produce the broad kind of record called for by the July 20 decision, but now suspended temporarily for the eight listed cases.