Government appeals new detainee case
on Feb 14, 2008 at 5:00 pm
The Bush Administration on Thursday afternoon asked the Supreme Court to take on this Term another significant dispute over the legal rights of Guantanamo Bay detainees — this time, a controversy over the nature of court review of military decisions to designate captives as enemies who must remain confined. The government suggested two options: hold the new case until the Justices decide two other pending detainee cases — the “better course,” it said — or grant review of the new case and set it for hearing and decision during the current Term. In the meantime, though, it asked the Justices to put on hold the D.C. Circuit Court decision that is being challenged in the new appeal — a delay that it suggested continue until 14 days after the Court resolves the new case. The petition is here, and the stay application is here.
The new appeal is Gates v. Bismullah, et al. (docketed as 07-1054). In an accompanying motion to expedite the case, the government said that, if the Court does agree to go forward with the new case now, the detainees’ lawyers be required to file a response to the appeal by March 4, with a government reply March 11, and consideration of the new case by the Justices at the scheduled Conference on Friday, March 14. If the Court then decides to grant review, it suggested that its merits brief be due April 11, the detainees’ brief May 1, the government reply on May 8, and oral argument on Wednesday, May 14.
While the new case is couched in highly technical terms — a controversy over the “scope of the record on review in an action brought under the Detainee Treatment Act,” it amounts to a fundamental test of whether the federal courts will provide a penetrating or only a limited, largely deferential review of military decisions to declare Guantanamo prisoners to be enemies (formally, “enemy combatants”). Such a designation may have two consequences: one, it leads to prolonged imprisonment, with or without any criminal charges, perhaps for the duration of terrorism-related hostilities worldwide; or, two, it can make a prisoner eligible to be tried on war crimes charges.
The military decisions at stake are made by special Pentagon-appointed panels, so-called Combatant Status Review Tribunals. The D.C. Circuit Court, assigned by Congress the task to review whether CSRT decisions are justified, has ruled that, in order for its review to be “meaningful,” it must examine a wide array of information that the government may have in its files about individual detainees. The government has insisted all along that the Circuit Court need only have before it the actual evidence that a CSRT considered — a far narrower record than the detainees’ lawyers want, and considerably narrower than the Circuit Court has mandated.
When the government responded to the Circuit Court ruling that it could not assemble all the information mandated, and even trying to do so would be a heavy burden that would divert military officials from waging war on terrorism, the Circuit Court said the Pentagon either had to assemble all that it could perhaps by compiling a new record, or it could start over with new Pentagon reviews — that is, a new, individual CSRT for each of the estimated 275 detainees still at Guantanamo Bay.
In the new appeal, Solicitor General Paul D. Clement said the Circuit Court’s mandate on the information file to be produced “is not only unprecedented in any administrative or judicial context, but it exceeds the constitutional requirements recognized by this Court in the ordinary criminal context.”
The Circuit Court’s mandate, the Solicitor General added, will apply to each of 180 detainee challenges already pending under the Detainee Treatment Act of 200. “To comply with the court of appeals’ conception of the record on review,” Clement said, “the government would be required to divert a significant portion of its intelligence, law enforcement, and military resources to either creating new ‘records’ for DTA litigation or to conducting entirely new CSRT hearings for those detainees. As the leaders of the intelligence community have attested, and as several members of the court of appeals recognized in opinions dissenting from the denial of rehearing [en banc], that diversion of resources from critical national security duties during ongoing armed conflict threatens national security.”
The processing plan that the government proposed to the Court, as its preferred option, would be simply to sit on the new case until after the Justices decided the pending cases in Boumediene v. Bush (06-1195) and Al Odah v. U.S. (06-1196). Those cases were heard by the Justices on Dec. 5, and presumably draft opinions are now circulating. In those cases, the Justices are weighing whether the detainees have any constitutional rights at all, whether they have a right to challenge their detention in potentially sweeping judicial review of habeas applications, and whether Congress acted unconstitutionally in wiping out habeas review for the detainees and substituting for it the new Detainee Treatment Act process before the D.C. Circuit.
Clement said that those cases and the new Bismullah/Parhat case involve issues that are “intertwined.” Clement wrote: “If, for example, this Court in Boumediene and Al Odah reaches the question of whether the DTA processes are an adequate substitute for the review provided by common-law habeas corpus, the Court may have occasion to address the scope of DTA review, perhaps including the record on review, directly. For example, the Court may interpret the provisions addressing DTA review in order to avoid any constitutional difficulties or grave doubts. If, on the other hand, this Court determines that detainees do not have Suspension Clause rights, it would not need to consider the adequacy of the DTA procedures directly. Nonetheless, that decision would only underscore the importance of the question presented in this petition. The Court could decide to either grant plenary review at that juncture or permit the court of appeals to revisit its ruling on the scope of the record for judicial review in light of the Court’s explanation of what rights (if any) detainees have to judicial review.”
Here is the explicit question the new appeal posed: “Whether, in an action brought under the DTA, the record for judicial review of a CSRT determination consists of the material presented to and considered by the CSRT, or whether it extends to the much broader category of all reasonably available information in the possession of the United States government bearing on the issue of whether the detainee is an enemy combatant, regardless of whether the material was actually presented to or considered by the CSRT.”
The explicit decision at issue in the new case was decided last July 20 by a three-judge panel of the Circuit Court. On Oct. 3, that panel refused to rehear the case. Then, on Feb. 1, the full Circuit Court split 5-5 in denying rehearing en banc. On Wednesday, the Circuit Court puts its July 20 decision on hold pending a government request for a stay from the Supreme Court.
Given the approach the government suggested Thursday, the Court need not act quickly on the petition for review, but may feel a need to respond soon to the motion to expedite and, definitely, to the stay motion. The government asked for an expedited schedule to consider the petition, and, if the Court then decides not to hold it for the decision in Boumediene/Al Odah, it sought a separate expedited merits briefing schedule. The Court is holding a Conference on Friday of this week, and conceivably it could consider the stay motion and perhaps the initial expedition motion at that time. It may wish, however, to await a response from detainees’ lawyers before acting on either.
The Circuit Court has stayed its ruling only while the government seeks a stay from the Supreme Court. Thus, the new stay application reaches the Court on a fairly tight timetable. The application goes initially to Chief Justice John G. Roberts, Jr., as Circuit Justice for the D.C. Circuit. He may act on it alone, or share the action with his colleagues.
