Conference Call: Another Detainee Case Heads to High Court

The following column, featuring a selected petition up for consideration at the Justices’ private conference on March 14, appears in today’s edition of Legal Times (available to subscribers here). To see the full list of “petitions to watch” for Friday’s conference, click here.

Last June, the Supreme Court shocked the legal community when, three months after denying certiorari in a pair of petitions from Guantánamo Bay, it reversed course and agreed to consider whether the constitutional right to habeas corpus extended to foreign detainees held at the U.S. naval base in Cuba.

This week, the justices could announce another jarring addition to the docket — this time involving the amount of evidence the government must provide to a civilian appellate court to justify the military’s conclusion the detainees at Guantánamo qualify as “enemy combatants.”

Adding to the drama, lawyers for both the government and detainees have agreed that if the Court grants certiorari at its private conference on March 14, it should expedite the case to be decided this term, with oral argument scheduled for late April or May. (The petition is No. 07-1054, Gates v. Bismullah.)

The litigation in question began in 2006, when a group of detainees challenged the military’s determination that they supported al-Qaida. According to lawyers for Afghan native Haji Bismullah, their client was serving as a transportation minister under the government of Hamid Karzai when U.S. forces mistakenly arrested him in early 2003.

Despite assurances of his innocence from the Afghan government, the military transferred Bismullah to Bagram Air Base and then Guantánamo, where a “Combatant Status Review Tribunal” (CSRT) found he qualified as an enemy combatant. Bismullah challenged the decision under the Detainee Treatment Act of 2005, which established the U.S. Court of Appeals for the D.C. Circuit as the sole forum in which detainees could appeal decisions of the review tribunals.

After the filing of numerous procedural motions over the amount of evidence the court should consider, a unanimous panel last July ruled largely in favor of the detainees. Reasoning that the court must ensure the military withheld no potentially exculpatory evidence from the detainees, then-Chief Judge Douglas Ginsburg wrote that the United States must provide all information “reasonably available” to the government bearing on the detainees’ guilt or innocence, regardless of whether it had actually been presented to the CSRT.

As Ginsburg put it, “the court cannot, as the DTA charges us, consider whether a preponderance of the evidence supports the Tribunal’s status determination without seeing all the evidence, any more than one can tell whether a fraction is more or less than one half by looking only at the numerator and not at the denominator.”

In seeking rehearing en banc, the government submitted affidavits from the heads of the CIA, FBI, and NSA, as well as military officials, arguing that diverting the manpower needed to assemble such records could endanger national security. Last month, in a 5-5 decision that produced five separate opinions, the full circuit declined to rehear the case en banc.

Meanwhile, last December, the Supreme Court heard argument in the detainee cases the justices unexpectedly granted at the end of the previous term (No. 06-1195, Boumediene v. Bush, and No. 06-1196, Al Odah v. United States). Central to those cases is whether Guantánamo detainees are entitled to habeas rights under the Constitution and, if so, whether the CSRT process – accompanied by judicial review in the D.C. Circuit – qualifies as an adequate and effective substitute.

In its petition for certiorari in the Bismullah case, the government argues that until those questions are answered, the government should not have to confront the unattractive option of either compiling the voluminous records required by the D.C. Circuit, or instead reconvening new CSRTs for potentially all of the remaining 275 detainees at Guantánamo.

Arguing that Bismullah and the pending Guantánamo cases are “intertwined,” Solicitor General Paul Clement asks the Court to hold the petition until the Court renders a decision or alternatively to grant the petition and expedite argument for this term so that they may be decided together.

On the merits, Clement argues that reviewing courts charged with weighing the sufficiency of evidence may ordinarily look only to the record presented to the initial decisionmaker. Indeed, Clement contends, the broad record mandated by the D.C. Circuit exceeds standard requirements in the administrative and even criminal context.

Clement argues that requiring the government to disclose all potentially relevant information is inappropriate given Congress’ intent to provide limited review of CSRT determinations, as well as the “unique wartime context” in which they took place. In any event, Clement argues that because the government has no interest in detaining nonenemy combatants, the Defense Department has routinely made “good faith” efforts to disclose all exculpatory information in its possession.

Asking the Court to deny the petition outright, lawyers for the detainees argue the government seeks only to delay cases brought under the Detainee Treatment Act, and to turn the D.C. Circuit into a “rubber stamp” for determinations of the CSRTs.

The brief in opposition, filed by Sabin Willett of Bingham McCutchen’s Boston office, asserts that Bismullah and other detainees believe they can prove the government failed to turn over exculpatory evidence in its possession, in violation of the Defense Department’s own regulations.

Willett also rejects the government’s analogy to the administrative and criminal process, noting that Guantánamo detainees, unlike ordinary litigants, cannot see all evidence against them, introduce evidence of their own, or enjoy the right to counsel at the initial hearing stage.

Downplaying the government’s national security arguments, Willett notes the government did not raise such concerns until months after the D.C. Circuit’s initial decision, and that defense counsel received access to classified information in the trials of the “millennium bomber” in Seattle and Zacarias Moussaoui in Northern Virginia. – Ben Winograd

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