Detainees try again for en banc review
on Oct 31, 2008 at 8:36 pm
Lawyers for 17 Guantanamo Bay prisoners on Friday filed a new plea for the full ten-judge D.C. Circuit Court to rule on the courts’ power to order release of detainees no longer considered enemies. At the same time, they argued that the President and his aides are seeking to put any remedy for detainees out of reach so as to gain a “blank check” to hold them indefinitely, perhaps for life.
The filings came as briefing moved ahead toward a Nov. 24 hearing before a three-judge panel of the Circuit Court. At issue is a federal judge’s Oct. 7 ruling that the 17 Chinese Muslim Uighurs, no longer designated “enemy combatants,” must be transferred to the U.S., and given their freedom, at least temporarily, because they cannot be resettled safely in any other country.
The three-judge Circuit panel, however, would not handle the case further if the en banc Court agreed to take it on first. A week ago, the en banc Court refused to step in, but that only involved the question whether it would review now a temporary order barring the 17 Uighurs from being shipped to the U.S.  Friday’s filing sought en banc review of the merits of the dispute.
Arguing that the Executive Branch is taking legal positions that conflict directly with the Supreme Court’s Boumediene v. Bush decision allowing habeas challenges to Guantanamo detention, counsel for the 17 prisoners contended that the case should go immediately to the full Court on “questions of exceptional importance.”
Noting that this case involved the first appeals court review of a final Guantanamo habeas decision by a judge, in the wake of Boumediene, the new petition said that “a ruling that these [17] have no remedy would eliminate judicial remedy for all Guantanamo prisoners, and make release from [military] prison solely a function of Executive discretion and unreviewable diplomacy with foreign sovereigns” seeking to arrange resettlement.
Among the questions the lawyers cited are whether the Executive Branch “may unilaterally avoid providing any habeas corpus relief,” whether a federal judge has the authority to deny habeas relief to a non-enemy civilian being held indefinitely in a military prison, and whether the Circuit Court must follow an earlier panel ruling that further detention of at least some of the Uighurs is no longer justified legally.
District Court judges are now “managing hundreds of cases that were stalled for many years,” the new filing contended, but the resistance of the Executive Branch to any habeas remedy is causing “considerable confusion” among those judges. “An early and definitive resolution” of the remedy issue would “greatly assist” the District judges in their task, it argued.
While en banc review in the first instance is not favored, the lawyers conceded, “the inevitable delays of a serial en banc process can be avoided only if the process commences now.”
The Justice Department will get a chance to reply to this and all of the other arguments by detainees’ counsel when it files a reply brief — the last stage of briefing — next Friday. Presumably, the en banc Court will act on the new plea for full court review before the scheduled Nov. 24 panel hearing.
Meanwhile, the 17 captives’ lawyers filed their merits brief in the Circuit Court, urging the three-judge panel to immediately lift the earlier order blocking transfer of the detainees to the U.S. The brief repeated the argument that, if the judge’s release order is overturned, any habeas remedy would be eliminated for all those at Guantanamo.
“Unlawful Guantanamo detentions,” the brief said, “may be relieved only by repatriation, transfer to a third country, or release here. Release here would open no floodgates. In most cases repatriation or transfer will — and indeed has been — feasible (most of the Guantanamo population has been released through these methods). And a habeas judge has broad discretion in fashioning an equitable remedy.”
In many cases, it said, a judge might give the government “a reasonable period to negotiate a transfer with a home country or safe refuge before imposing a release remedy.” But, it added, such a delay has been exhausted in the Uighurs’ case, because the government has been trying, unsuccessfully, for five years to resettle them safely.
A foreign government cannot be ordered to accept a Guantanamo detainee who is one of its own nationals, or one who is a citizen of another nation, so District judges must have the option of fashioning a remedy if the Executive Branch cannot achieve a repatriation or transfer, the brief contended.
“The effect of the Executive’s argument in this case is that the only unilateral relief a court can give cannot be ordered in any case,” the brief asserted. “If the Executive were correct, it would indeed have negotiated the blank check that [the Supreme Court] forbade [in 2004’s Hamdi v. Rumsfeld decision), for it might prolong any and all Guantanamo imprisonments at its pleasure.”
 The new merits brief, in summary, argued that the three-judge panel is bound by a ruling last summer in one of the Uighurs’ cases (that of Huzaifa Parhat) that he was entitled to release or transfer, that the Executive Branch has no authority to detain civilians “outside the war power” — including no authority to take time to “wind up” the detention of individuals legally entitled to release, that federal immigration law does not bar the transfer of the detainees to the U.S. and, if it did, it would violate the Constitution’s ban on suspending habeas rights, that separation of powers principles requires that release be an available habeas remedy, and that the Executive has offered no rationale for continuing to hold the Uighurs.
