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Detainees: DTA process still has value

Trying to head off a government move to shut down one layer of civilian court review of military detentions, lawyers for a group of Guantanamo Bay prisoners argued Thursday night that the D.C. Circuit Court has no authority to scuttle that option.  In a brief in opposition to the Justice Department request for en banc rehearing in Bismullah v. Gates (06-1197) and companion cases, detainees’ counsel argued that Congress and the Supreme Court have not abandoned the Detainee Treatment Act procedures, and a court cannot do so on its own.

Simultaneously, the detainees’ lawyers filed a motion urging the Circuit Court, if it should opt for new proceedings on the status of the DTA process, to expedite any such activity. (The motion to expedite can be found here.)  “Both the public and…detainees with DTA claims deserve the immediate resolution of this issue,” the motion argued.  “The DTA was enacted nearly three years ago, but a basic procedural issue has become a bottleneck….”

On Oct. 6, the Justice Department asked the full ten-judge Circuit Court to reconsider two prior rulings by a three-judge Circuit panel requiring the government to produce a wide array of evidence it may have about detainees for use by the Court in DTA proceedings.  (See this post on the rehearing petition.) The DTA, passed by Congress in 2005, allows detainees to challenge in the Circuit Court the actions of Pentagon tribunals that initially ordered the detention of individuals at Guantanamo.

In seeking a new hearing on that issue, the government for the first time contended that the entire DTA process has ceased to exist as a result of the Supreme Court’s decision in Boumediene v. Bush on June 12 allowing Guantanamo prisoners to challenge their imprisonment in habeas cases in District Court.  The two alernative processes should not be going on, the Department contended, adding that it is concerned that the DTA process may result in the disclosure of secret government information.

Countering that argument, detainees’ counsel on Thursday said that the Circuit Court “should decline the Government’s invitation to rewrite the DTA from the bench and let stand” the prior rulings in the Bismullah group of cases — rulings that the Circuit Court itself reinstated in August.

The brief asserted that the DTA process remains a preferred option for some detainees who have not yet attempted the habeas alternative.  And, in fact, the new brief contended, having the DTA proceedings continue siimultaneously with the District Court habeas cases may make both processes work more efficiently.

The main thrust of the detainees’ response, however, was that nothing has changed since the Circuit Court denied en banc rehearing in Bismullah last February, that Congress has taken no action to signal that the DTA process is a dead letter, and that the Supreme Court’s decision in Boumediene cannot be read to have undermined the continuation of DTA proceedings alongside habeas cases. In fact, it noted, the Supreme Court said the DTA alternative remained “intact.”

It added: “Despite dozens of submissions in DTA cases since the Boumediene decision, this is the first time the Government has even suggested that it results in elimination of the DTA cause of action.”

The brief noted that, for more than two years, Haji Bismullah and the other detainees in the cases have been seeking “production of the full body of information that should have been considered when the Govrnment determined that they were enemy combatants.”

And, it added, the Circuit Court four different times has ruled that the detainees are entitled to that information — evidence which may help them counter the designation of “enemy combatant.”   Now, it went on, the government asks the detainees “to bear the burden of more delay so that the Court may consider for the fifth time” a decision that is based on the language of the DTA and on Pentagon regulations governing combatant tribunals.

The detainees, according to their lawyers, have had to endure another year in captivity “while the legal wrangling continues” over the question of what information must be supplied as the Circuit Court reviews “enemy combatant” designations.

Moreover, “despite years of litigation,” the brief asserted, “the Government has never produced the full records that should have been created in connection with the determinations that these [prisoners] were enemy combatants.”

The detainees’ attorneys also said that more evidence has come out that the Pentagon has not followed its own procedures in conducting reviews of the “enemy combatant” status of Guantanamo prisoners.  The Circuit Court itself, the brief noted, had repeatedly remarked that the Pentagon has not followed its own regulations on detainee status.  And, it added, recent disclosures of withholding of evidence favorable to detainees who are facing war crimes charges before military commissions reinforces the conclusion that the Government is holding back such information.

In discussing what they see as the value, for some detainees, of pursuing a DTA remedy rather than immediately seeking habeas relief, the new brief said that the habeas process is moving slower for some detainees than for others, but those detainees may be in line for earlier resolution of their cases in the DTA process.   Bismullah’s case, the document added, “is strong enough that he may be able to obtain relief through his” DTA action, which was filed early.  (He does not yet have a habeas petition pending.)