Government: Let habeas cases go first
on Jun 18, 2008 at 5:03 pm
The Justice Department, following up on the Supreme Court ruling on the legal rights of Guantanamo Bay detainees, urged the D.C. Circuit Court to put more than 190 appeals on hold and thus allow the prisoners to go forward with their challenges in District Court under federal habeas law. The motion was filed in the case of one detainee, Hassan Abdul Said, but the language of the motion spoke more broadly about how the Circuit Court should proceed in the wake of the Justices’ ruling last Thursday in Boumediene v. Bush (06-1195) and Al Odah v. U.S. (06-1196), upholding a constitutional right for detainees to file habeas challenges to their continued confinement.
The government motion can be downloaded here.
Meanwhile, the chief judge in U.S. District Court, where more than 200 detainee habeas cases are already pending with more expected, began exploring with government and detainees’ counsel how those proceedings would go from here on. The off-the-record meeting, the judge’s office said in a press release, went over “a number of security and procedural issues.” Another such meeting it set for next Wednesday and, the judge said, he and the other judges on the Court would meet soon to go over ideas put forth by the lawyers.
The security issues to which the judge referred involved how to handle classified materials, including who gets access and how they may be used. The procedural issues mentioned presumably are the actually methods the Court will use to try to make the process more manageable — a task that may loom ever larger, in view of already demonstrated wide differences between government and defense lawyers over process matters.
The government’s new filing in the Circuit Court covered two kinds of appeals now awaiting action at that level. One group of appeals — the more than 190 that the motion asked to be held “in abeyance” — are detainees’ challenges to military findings that they are “enemy combatants” who must remain confined. (The Pentagon’s Combatant Status Review Tribunals make those enemy designations.) Those cases were filed under the Detainee Treatment Act of 2005 and involved more limited civilian court review — available only in the Circuit Court — than is available under habeas law. Congress intended the DTA process to be a substitute for habeas, but the Supreme Court ruled last Thursday that it was an inadequate substitute for constitutional habeas rights.
The second group of appeals, numbering more than 100, have themselves grown out of earlier court disputes in habeas cases. Those appeals involve some detainees’ challenges to denials of their habeas petitions, but appear in the main to be government appeals challenging orders not to move detainees, or orders to give detainees’ lawyers notice before a prisoner is sent away from Guantanamo, plus some disputes over classified materials. In its motion on Wednesday, the Justice Department suggested that those be moved “forward to resolution.”
The Department also said that the Circuit Court should expect to be faced with a number of new issues, which it should process speedily, about the scope of habeas rights that the Supreme Court did not resolve in Boumediene.
“We respectfully submit that this Court and the parties should focus their resources and attention in addressing these habeas matters, as opposed to proceeding with the DTA review in over 190 cases…when the Supreme Court has deemed that review inadequate,” the motion said. “Litigation in both the DTA cases and the more than 200 habeas cases simultaneously would waste scarce judicial and governmental resources.”
It added that military and intelligence agencies have spent efforts to gather materials ut to be used in the DTA reviews, but they should now be allowed to focus “exclusively” on preparing factual responses to the detainees’ habeas claims in some 200 pending cases. That focus will be needed, it said, “in order for the habeas proceedings to move forward at the pace anticipated by the Supreme Court.”
In filing its plea on the next steps, the Justice Department chose a case in which a detainee has not yet filed a habeas challenge, but did file in early May a DTA appeal contesting his enemy combatant designation. The case is Said v. Gates (Circuit docket 08-1183). The motion said it expected Said’s lawyer to file a habeas case soon under the Boumediene decision. “If filed, that habeas proceeding should move forward while this DTA case should be placed on hold,” it said.
As an alternative to holding the case, it suggested that the Circuit Court may wish to dismiss the DTA appeal “without prejudice,” so that it could be filed anew after habeas proceedings had concluded.
