Circuit Court: DTA process is probably dead

By Lyle Denniston
on Nov 4, 2008 at 5:31 pm

Detainees at Guantanamo Bay apparently no longer have the option of pursuing challenges to their confinement in two separate courts, according to a ruling by the D.C. Circuit Court on Tuesday.  In a significant victory for the government — unexpected in the case — a three-judge panel said the Detainee Treatment Act system of civilian court review of military detention probably has not survived the Supreme Court’s revival, in Boumediene v. Bush, of the detainees’ alternative mode of challenge — federal habeas cases.  The rulng was issued in Basardh v. Gates (Circuit docket 07-1192), and is available here.)

While the Supreme Court had said in the Boumediene ruling that the DTA process remained intact, the Circuit Court on Tuesday said the Justices did not have before them the continuing status of DTA review, and thus could not have intended to decide it.

The ruling came in the case of Yasin Muhammed Basardh, a Guantanamo detainee who has been seeking since June 2007 to challenge in the Circuit Court a Pentagon tribunal’s decision to designate him as an “enemy combatant,” thus justifying his continued imprisonment.  That challenge was based on DTA, passed by Congress in 2005.  Tuesday’s decision leaves Basardh with only one option: continuing to pursue his habeas challenge before U.S. District Judge Ellen S. Huvelle.

The panel reached out to comment on the continuing validity of the DTA process, noting that neither side had asked it to rule on the issue.  It said it was doing so on its own, presumably as an issue of jurisdiction, but also remarked that the Justice Department was seeking to end the entire DTA review process in a pending motion for en banc review of the present status of that process by the full, ten-judge Circuit Court.

The three-judge panel did not issue a final, binding ruling that the DTA scheme of alternative review could not continue.  Rather, it said that “there is serious doubt about our jurisdiction over these petitions — and thus a strong probability that the government will prevail” on its claim that Boumediene left detainees with only one option: habeas review. It described the loss of its jurisdiction over DTA cases as a “distinct possibility,” not only as to Basardh’s appeal but also “every other petition filed” under DTA.

While some of the language in the opinion appeared to be tentative, the panel also said explicitly that the DTA process “must fall” as a result of Boumediene.  That decision, the panel noted, struck down Congress’ court-stripping provision that sought to block all habeas claims by Guantanamo prisoners, and the Justices thus restored habeas. But, in the process, the panel suggested, the Court also nullified Circuit Court review of DTA cases “as well.”

Congress, the panel said, would not have wanted to give Guantanamo detainees the option of continuing with DTA challenges, if the lawmakers had known that detainees would also have habeas review available simultaneously.  The attempt to scuttle habeas and to replace it with DTA review, it said, were efforts that were “linked in text and purpose” by Congress.  The lawmakers, it said, wanted detainees’ cases limited to “one forum.”

The panel’s ruling in formal terms did no more than hold in abeyance the DTA-based challenge by Basardh.  Thus, it only affects that single case, but its interpretation that DTA is at an end appears to be part of  a precedent that might have to be followed by other panels unless explicitly overturned by the en banc Court.  It clearly appeared to be more than dicta.

The ruling came unexpectedly, because the panel has had before it since June 18 the government’s plea to put Basardh’s case on hold.  That was one of a series of such requests the government filed in the Circuit Court six days after the Supreme Court’s Boumediene ruling on June 12. The Circuit Court has not acted on a braoder plea to shut down all 190 pending DTA appeals by detainees.

In Basardh’s case, the government’s motion to hold it in abeyance was filed, as indicated, on June 18.  The Circuit Court took no action on the case until August 4, when it suspended a briefing schedule on the merits of Basardh’s DTA appeal.  Nothing further happened in the case until Tuesday’s ruling on the abeyance motion.

In another part of Tuesday’s decision, the panel gave detainees’ lawyers an apparent victory. It indicated in a footnote that the habeas cases are now proceeding in District Court under the traditional federal habeas statute (28 U.S.C. 2241).  While the Court did not take account of this in its footnote, the government has argued in District Court that the habeas rights the detainees won in Boumediene are narrower than under the habeas statute. 

By saying that the entire issue of DTA’s survival alongside revived habeas review was considered by Congress as it amended the general habeas law, the panel signaled that that law was fully back in force.