Primer on the Guantanamo cases

By Lyle Denniston
on Mar 13, 2005 at 9:26 pm

This is another in a continuing series of reports on the aftermath of the Supreme Court’s June 28 rulings in the war on terrorism cases of Rasul/Al Odah v. Bush and Hamdi v. Rumsfeld.

Almost all chances that the next round in the Guantanamo detainees’ cases will get to the Supreme Court in the current Term have now disappeared, indicating that the multi-faceted constitutional controversy is likely to go over until October. The cases, six now pending in the D.C. Circuit and others still developing in U.S. District Court, have grown increasingly complex in recent days — including unusual court orders this Saturday and Sunday. As a result of a number of developments, the schedule for disposing of the cases in lower courts has been stretched out.

The easiest way to get caught up on the status of the controversy is to examine the cases one by one. Thus, this primer on the individual proceedings.

D.C. Circuit cases

The furthest advanced of the cases is Rumsfeld v. Hamdan, the government’s appeal of a ruling by U.S. District Judge James Robertson that the military tribunals set up to try terrorist suspects at Guantanamo on war crimes charges are unconstitutional in their present form. That case is now pending in the D.C. Circuit as docket 04-5393, is on expedited review, and is scheduled for oral argument on April 7. The Circuit Court has refused to hear the case in an initial en banc proceeding, so the case is likely to take several weeks beyond the oral argument to make its way to the Supreme Court. Although the government had suggested that the Circuit Court might want to coordinate or consolidate this case with other new appeals on detainees, that apparently is not going to happen, at least at the panel stage. Guantanamo detainees involved in other cases opposed that suggestion.

Next on the D.C. Circuit schedule are five cases that are a direct outgrowth of the Supreme Court’s Rasul decision allowing foreign nationals who are Guantanamo detainees to file habeas challenges to their continued detention at the U.S. Naval prison in Cuba. Those cases are not expected to be heard by the Circuit Court until sometime after June 28, when briefing is to be completed. The cases will be heard in two back-to-back hearings by the same, as-yet unassigned, panel. All are on an expedited schedule; three are pre-trial appeals, two appeals from a dismissal.
Two of those appeals carry the title In re Guantanamo Detainee Cases and are temporarily docketed together as 05-8003. A third case, Al Odah v. U.S. (05-5064) will be consolidated with those. The three involve a ruling by U.S. District Judge Joyce Hens Green finding that the detainees have rights under the U.S. Constitution and international treaty, and thus refusing the government’s move to dismiss their challenges. One appeal is by the government, the others are by detainees — all objecting to parts of Judge Green’s decision. (One of the detainees’ appeals involves captives who were involved in 11 cases before Judge Green, the other appeal is by captives involved in just one of those cases.) The briefing in those cases is to be completed by June 28.
The other two appeals are by detainees, challenging a separate decision by U.S. District Judge Richard J. Leon dismissing their challenges outright. Those cases are Boumedienne v. Bush(05-5062)and Khalid v. Bush (05-5063); they have been consolidated. Briefing in those cases is to be completed by June 8.
The Circuit Court on Friday directed that oral argument in the five cases be scheduled “on the first appropriate date after the conclusion of briefing” – that is, after June 28. They are to be heard on the same day and by the same panel – appeals from Judge Green’s decision in one hearing, appeals from Judge Leon’s ruling in the other.

D.C. District Court cases

Perhaps the most significant of a variety of detainee cases still pending in District Court is an attempt by 13 Yemeni detainees at Guantanamo to prevent the Pentagon or other U.S. officials from sending them to other countries for continued detention – at least until the detainees’ lawyers have a chance to challenge such transfers in District Court. Sending detainees to be detained by foreign officials abroad would presumably scuttle their pending habeas challenges. The detainees also say they fear torture by other countries’ officials. (This case is Abdah v. Bush, 04-1254.) The government has resisted the Yemenis’ effort, telling the District Court that “there is no legal basis for judicial intervention in the processes by which enemy combatant detainees are repatriated or transferred, and any such interference would illegitimately encroach on the foreign relations and national security prerogatives of the Executive Branch.”
But, over the weekend – on Saturday afternoon – U.S. District Judge Rosemary M. Collyer, sitting in as an emergency motions judge, temporarily blocked any transfer of the Yemenis for up to ten days. The District judge presiding in the case, Henry H. Kennedy, is scheduled to hear the Yemenis’ challenge on March 24; he would have the authority to extend the 10-day delay ordered by Judge Collyer; that period would expire before the scheduled hearing date.
The flurry of activity was prompted in part by a New York Times story in Saturday’s editions saying that the government intended to promptly transfer hundreds of Guantanamo detainees to other countries, including Yemen.

Another order came out of District Court on Sunday afternoon in still another Guantanamo detainees case. Captives whose cases were not decided in the rulings before Judges Green and Leon are represented by attorneys in John Does 1-570 v. Bush (05-313). Their attorneys asked Judge Collyer, as emergency motions judge, to block the transfer of any of the detainees to other countries, just as she had done Saturday with the 13 Yemenis. Collyer refused to do so, finding “there are no facts that indicate that any of these particular petitioners are at risk of transfer.” She thus found no showing of “imminent harm.”

(Thanks to Richard Samp of Washington Legal Foundation and David Remes of Covington and Burling for updates on the D.C. Circuit cases.)