Swift denial of new detainee case urged
on Mar 4, 2008 at 2:03 pm
Lawyers for eight detainees at Guantanamo Bay, Cuba, on Tuesday afternoon urged the Supreme Court to act quickly and deny review of the government’s new appeal on the prisoners’ legal rights. The brief in opposition in Gates v. Bismullah (07-1054) is now available here.
Disputing the Justice Department suggestion that this case be held until the Court issues a final ruling on two other cases on detainees’ rights (Boumediene v. Bush, 06-1195, and Al Odah v. U.S., 06-1195), the prisoners’ lawyers argued that the new appeal “is both premature and meritless and should be denied now so that [the detainees] may proceed” in D.C. Circuit Court with pending challenges to their designation as enemies who must remain in detention.
There is no connection between the Bismullah appeal and the cases that the Justices have already heard, on Dec. 5, the new brief contended. The detainees “are entitled to their statutory review” in the Circuit Court under the Detainee Treatment Act, “and there is no scenario in which this Court’s ruling in Boumediene will constrict the contours of that review. Allowing the government to tie its petition [in Bismullah] seeking to narrow the statute to the disposition of cases not presenting that issue simply interposes yet more months of delay before [detainees] can obtain any review of their imprisonments,” the brief contended.
The Justice Department, in addition to asking the Court to expedite its grant of review but then hold the case until it decides the pending controversies over detainees’ rights, has asked the Justices to put on hold all of the Circuit Court cases until after the Bismullah appeal is resolved.
The detainees’ new brief suggested that the Justice Department had switched positions since last October on linking the two disputes over detainees’ rights. The situation under the Detainee Treatment Act, and the Circuit Court’s role in reviewing enemy combatant rulings by the military, was the same in October as it is now. Back then, when the government filed its brief in the Boumediene cases, the detainees’ lawyers noted, it urged the Justices to require detainees to exhaust their possible remedies under the DTA.
Quoting from that government filiing, the new brief commented: “It was full speed ahead in the DTA proceedings. ‘This Court should not attempt to evaluate the adequacy of the DTA until the District of Columbia Circuit has had an opportunity to construe the statute and this Court can examine its operation in a concrete setting.’ ”
The detainees’ brief added: “the drumbeat was unmistakable. Habeas appeals [as in Boumediene] must stand aside while cases moved to decision under the DTA. That was then. In the habeas appeals, the government urged this Court to defer to the DTA; now it urges the same Court — by seeking certiorari review of an interlocutory ruling, no less — to defer the DTA to habeas.”
The consistency in the government’s arguments, the detainees’ counsel asserted, is that “all progress, in all cases, should simply be frozen.”
The government gets a chance to file a reply by 2 p.m. next Tuesday. The Bismullah case thus is likely to go before the Justices for their initial action at their private Conference on Friday, March 14.
The government’s appeal in Bismullah focused on the type and scope of information that the Pentagon and intelligence agencies must supply to the Circuit Court as it weighs the military detention rulings of so-called Combatant Status Review Tribunals. Congress assigned the Circuit Court to that review task after seeking to wipe out all rights of detainees to challenge their detention under federal habeas law. The pending Boumediene case is a constitutional test of Congress’ authority to take away from detainees the habeas option and substitute in its place the DTA review process.
In their new brief, detainees’ lawyers noted that while Boumediene is a constitutional case, all that is at issue in the Bismullah case is an interpretation of a statute, the DTA.
The government contends that the only information the Circuit Court needs to judge the detention rulings of the CSRTs is the evidence actually laid before those tribunals. The Circuit Court, however, has said that it can conduct its review properly only if it has all government information that bears upon an individual detainee’s status — with perhaps some classified information to be shown only to the Circuit Court judges, not to detainees’ counsel. The government’s appeal contends that it is an enormous burden — one that may not practically be accomplished — to require it to assemble all the information potentially available for individual detainees, and certaintly not for all of the 180 detainee cases now pending at the Circuit Court.
The detainees’ lawyers said that they have information that there was evidence in the government’s possession that would work against the designation of these eight prisoners as enemies, but this information was not provided to the CSRTs who processed their cases. “If the government’s view of the record on review [before the Circuit Court] were correct, no court would ever see that evidence,” the brief said.
Meanwhile, one of the eight detainees involved in the Bismullah case, Huzaifa Parhat, is attempting in the Circuit Court to obtain his outright release from Guantanamo. A key issue in the case is whether the President has any authority, under the 9/11 Resolution or under constitutional powers of the commander-in-chief, to order Parhat’s detention. Parhat’s counsel filed a new brief in that case on Feb. 20. A redacted version of that brief was made public Tuesday; it can be downloaded here. UPDATE: The Circuit Court has scheduled oral argument in the Parhat case for Friday, April 4.
