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Action on U.S. move to scuttle DTA

Showing a clear interest in the Justice Department’s new plea to put an end to the second layer of civilian court review of military detention of suspected “enemy combatants,” the D.C. Circuit Court has moved quickly to get the reaction of lawyers for the detainees.  In a brief order Thursday, the Court, acting on its own, told the attorneys to file by Oct. 24 a response to the government’s petition for rehearing en banc of Bismullah v. Gates (06-1197).

The Circuit Court, leaving the impression that it could act quickly, said it would not accept a reply by the government to that detainees’ filing.  This is a dispute that almost certainly is going to wind up in the Supreme Court, where it has been once before.

On Monday, the Justice Department filed its rehearing petition, arguing that the Circuit Court no longer has any legal basis for continuing to review detention orders under authority that Congress had granted to that Court in the Detainee Treatment Act of 2005.  That grant of authority, the Department contended, ended when the Supreme Court in Boumediene v. Bush on June 12 gave Guantanamo detainees an alternative for their challenges — a constitutional right to pursue habeas relief.

The Circuit Court’s  Bismullah decision that the Department is newly challenging was first issued in July 2007. It interpreted the DTA as giving the Circuit Court a mandate for a wide-ranging review of military decisions to detain prisoners at Guantanamo Bay.  The Circuit Court said it would review not just the information considered by the Pentagon’s Combatant Review Status Tribunals, which made the detention decisions, but a much broader array of information from government files on individual detainees.

The Pentagon, plus all of the government’s intelligence agencies, have been deeply distrubed by that ruling ever since, claiming it poses a grave risk of disclosing highly secret government intelligence.  The Justice Department tried earlier to get en banc review of the Bismullah decision, but that failed on a 5-5 vote last February.  It then asked the Supreme Court to review the ruling, but the Justices instead vacated the Circuit Court ruling on June 23 (07-1054), and sent it back to consider the impact on it of the Boumediene decision.

The Circuit Court, at the request of detainees’ attorneys, on Aug. 25 reinstated its ruling mandating broad review — over the government’s objection.  The Justice Department then sought to get the decision put on hold, to allow the habeas challenges to go forward alone, in U.S. District Courts.  It signaled that it might ask for en banc review.  The Circuit Court has not acted on the postponement plea.

The government’s challenge continued to escalate with its rehearing petition this week.  It now is arguing that the Boumediene decision, while saying that the DTA review process remained “intact,” actually operated in practice to nullify DTA jurisdiction.

The Justices, it noted, struck down Congress’ 2006 law that took away habeas rights of the detainees.  The grant of DTA jurisdiction to the Circuit Court cannot be severed from the habeas provision that was struck down, the Department contended.

“There is no dispute,” the rehearing petition said, that Congress — in passing DTA in 2005 and the court-stripping Military Commissions Act in 2006 — “intended to limit judicial review for detainees held at Guantanamo Bay and to channel review into a single forum.  Congress’s intent was not to provide suspected enemy combatants with more review than habeas, and certainly not to provide two simultaneous and overlapping tiers of review.  Yet that would be the precise result if this Court allowed the DTA’s judicial review provisions to stand even after Boumediene.”

The Circuit Court has continued its DTA review proceedings.  In the first full-scale decision on a detention ruling by a Pentagon CSRT, the Court nullified the detention order for insufficient evidence of enemy activity.  (That ruling, in Parhat v. Gates, has led to an intense new controversy over release of non-enemy detainees into the U.S.)

In asking anew for en banc review of Bismullah, the Justice Department criticized the reisntatement of that decision by a Circuit panel as “gravely endanger[ing] our national security.” The ruling, it argued, “would effectively require the disclosure of clandestine intelligence actvitities, discouraging cooperation by foreign governments and other critical intelligence sources.’

In addition, the petition said, if the government has to recreate the broad file of information about individual detainees, or to summon new Pentagon tribunals in every DTA case, “compliance would unduly strain intelligence resources, which have already been stetched to the breaking point by Boumediene’s mandate to litigate the habeas cases expeditiously….The breakneck pace of the more than 200 habeas proceedings has stretched intelligence sources to their limits.”

If the DTA process is permitted to continue, the petition went on, it should be confined solely to the information actually considered by the Pentagon tribunals.  That is what Congress intended, it said, adding that there was language in the Boumediene decision that the Supreme Court saw it that way, too.

“And because Boumediene provides for habeas review, there is now no reason to expansively and atextually interpret the DTA to provide for more review than Congress intended.”

The Bismullah decision, it said, “is even less defensible now than it was before Boumediene.”

It would take a vote of a majority of the Circuit Court’s ten active judges to grant en banc rehearing.

The Court’s membership has not changed since the 5-5 split denied rehearing in February.  But the Justice Department has hopes because, as it noted in its petition, only four of the judges who voted against rehearing defending the panel ruling.  The fifth member of the Court who voted not to rehear, Judge Merrick B. Garland, gave as his reason the unwillingness to delay the Supreme Court’s review of the Boumediene decision.  Assuming the five who voted in February to rehear do so again, the Justice Department would seem to have a chance only if Judge Garland agreed.

Given the intensity of the government’s concern about the Bismullah ruling, it would seem a near-certainty that it would take the dispute on to the Supreme Court if rehearing is denied now.