Further briefing in detainee cases?

By Lyle Denniston
on Feb 2, 2008 at 1:03 am

UPDATE early Saturday:

When the Supreme Court last June 29 reversed position and decided, after all, to hear the two pending cases on the legal rights of Guantanamo Bay detainees, it said that its review would be aided by a decision that was then expected to emerge from the D.C. Circuit Court in two other cases focusing on the ground rules for judicial review of military detention decisions. The Supreme Court also indicated that it would call for supplemental briefing in the cases then before it, after the Circuit Court had finished its work on the still-pending litigation in that Court.  With Friday’s denial of rehearing en banc by the Circuit Court in that litigation, the Circuit Court’s panel decision of last July 20 becomes final, and, therefore, the Supreme Court will now face the question of whether, two months after oral argument in the cases on its docket, it still wishes to have further briefing.   This prospect was discussed in some of the opinions the Circuit Court issued on Friday, with the judges of that Court debating whether it would aid or complicate the Supreme Court’s work if the Circuit Court should itself undertake a new round of consideration.  The Friday order, barring that new round of review there, left it up to the Supreme Court to decide on the next step, but with the Justice Department and detainees’ lawyers perhaps opting fairly soon to take positions in the Supreme Court on how to proceed.  There is also a question of whether the Department will seek a stay of the Circuit Court’s July decision (an issue mentioned in the body of the post below).

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The full D.C. Circuit Court, splitting evenly, refused on Friday to reconsider a July 20 ruling that requires the government to provide a wide array of information it has about Guantanamo Bay detainees when the Circuit Court hears their challenges to military orders requiring their continued captivity.  Under the Detainee Treatment Act of 2005, the Guantanamo prisoners have a legal right to ask the Circuit Court to review Pentagon decisions to designate them as “enemy combatants,” a finding that mandates that they remain at the prison on the island of Cuba.

The three-judge Circuit Court panel ruling last summer that was left intact by Friday’s order was a partial but significant victory for detainees and their volunteer lawyers, because it was interpreted by both sides as giving the detainees a chance to test a large dossier of information that the government might have that may bear on whether they actually are “combatants” — plus a chance for detainees’ counsel to offer more favorable information for the prisoners.  The government had wanted the record to be reviewed by the Circuit Court to be limited only to the information that Pentagon panels (Combatant Status Review Tribunals) had considered.

The 5-5 Circuit Court split Friday in the combined cases of Bismullah v. Gates (Circuit docket 06-1197) and Parhat v. Gates (06-1397) came nearly five months after the Bush Administration had asked for en banc rehearing, and just about four months after the three-judge panel had declined rehearing of its July 20 decision.  The Circuit Court posted a 37-page opinion, composed of five separate statements discussing the denial of rehearing en banc.

The opinion can be downloaded here.  The ruling brought a sharp exchange between four judges on one side of the rehearing denial and four judges on the other, over whether the panel decision posed a danger to national security.

In seeking rehearing and en banc rehearing last Sept. 7, the government had argued that the panel’s July 20 decision risked exposure of vital national security information and posed a significant danger that officials would be diverted from their opportunity to continue waging a “war on terrorism.”  The government sought to buttress those claims with public as well as secret declarations by the entire top echelon of the nation’s intelligence agencies.

The government had urged the Circuit Court to act swiftly on its rehearing request, so that, if that were denied, the government could then move swiftly to the Supreme Court. The aim was to get the ground rules for judicial review of “enemy combatant” decisions before the Justices during the current Term, alongside the Justices’ then-planned review of two basic cases testing whether Guantanamo detainees have rights to challenge their initial and continued detention in a legal setting that would give them greater rights and a more enhanced chance of winning their release.  In the time the Circuit Court took to consider the rehearing plea, the Supreme Court moved on with the other detainee cases (Boumediene v. Bush, 06-1195, and Al Odah v. U.S., 06-1196), holding a hearing Dec. 5 and now proceeding to deliberate toward a decision.  It now appears quite unlikely that the Justices could hear and decide an appeal in the Bismullah/Parhat cases this Term, should the government now file.  Still, the government may try to delay the Circuit Court panel ruling because, otherwise, it would have to produce the information that that decision requires. It could seek a stay either from the Circuit Court or from the Supreme Court to keep everything on hold for the time being — a move that, if it succeeded, could keep the detainee challenges in legal limbo for months to come.

The three-judge Circuit Court panel handling Bismullah/Parhat refused rehearing on Oct. 3, but nothing was heard from the en banc court of ten judges until Friday.   The government did win one small but important point when the en banc Court acted: it agreed to allow access to the intelligence officials’ top-secret declarations only to the judges themselves, and not to the lawyers for detainees or even to the judges’ own law clerks.

This was the breakdown of the full Circuit Court’s split in denying en banc review:

Against review: Circuit Judges Douglas H. Ginsburg and Judith Rogers (members of the three-judge panel) and Circuit Judges Thomas Griffith and David S. Tatel, all joining in a Ginsburg opinion, plus Circuit Judge Merrick Garland, who wrote separately.

In favor of review: Circuit Judge Karen LeCraft Henderson (a member of the three-judge panel) and Circuit Judges Janice R. Brown, Brett Kavanaugh, A. Raymond Randolph and David B. Sentelle; Henderson wrote a dissent joined by Kavanaugh, Randolph and Sentelle; Randolph wrote a dissent joined by Henderson, Kavanaugh and Sentelle (Judge Randolph also filed a concurring statement for himself); Judge Brown wrote separately in dissent.