New briefs ordered in detainee cases
on Jan 30, 2006 at 11:48 am
The D.C. Circuit Court has told lawyers in two packets of cases involving war-on-terrorism detainees to file new written arguments on the effect on pending cases of the new Detainee Treatment Act of 2005. In an order issued Friday, the three-judge panel also said it would hold oral argument on March 22 on the Act’s effect.
Congress, in enacting the new detainee law late in 2005, moved to strictly limit court challenges by foreign nationals being held at the military prison at Guantanamo Bay, Cuba, substituting a new Circuit Court review process for the basic habeas challenges that the prisoners have been making over the past two years. The key issue now being fought out in the D.C. Circuit — as well as in the Supreme Court — is whether the new Act bars federal courts from deciding the already-pending habeas cases.
The D.C. Circuit was nearing the end of a new round of briefing on the question of its jurisdiction over the existing detainee cases, when it moved on Friday to suspend that schedule, and to substitute a new one. Here is the question the Court asked counsel to address in their new briefs:
“Assuming this court determines it lacks jurisdiction over these cases by reason of enactment of the Detainee Treatment Act of 2005, what is the appropriate disposition of the conflicting district court judgments entered before enactment of the statute?”
The reference to conflicting rulings in the District Court were to decisions reached in separate detainee challenges: in one, the judge ruled that the detainees do have legal rights that they may pursue in a habeas challenge, and that the existing military procedures for reviewing their detainee status are invalid; in the other, a different judge ruled ruled that the detainees have no legal rights they could assert once they had filed their habeas petitions. The D.C. Circuit has been reviewing both of those rulings, and held separate hearings on them on Sept. 8. Before it could reach its decision, however, Congress passed the new judicial review provisions in the Act (the so-called “Graham-Levin Amendment” procedures).
The Justice Department had already recommended to the Circuit Court that, while it should find it had lost jurisdiction over the cases under the new law, it should go ahead and decide the underlying legal questions that the cases raised because those will recur under the new review procedures. The detainees’ lawyers countered that their clients were not yet covered by the Act, because their detention had not been reviewed under the procedures established anew by the Detainee Act. Detainees’ counsel also argued that Congress did not intend to apply the new restrictions to pending cases.
The D.C. Circuit, rather than resolve that dispute on the basis of the briefs already filed, which dealt with that discrete issue only in a minor way, decided it would order a complete new round of briefs confined to that question.
The Court acted on its own motion in setting the new briefing schedule and ordering oral argument for March 22.
The government’s new brief is due Feb. 17, separate briefs by the two groups of detainees are due on March 10,. and a government reply is due March 17. Amici supporting each side must file their briefs with that side of the case under the new schedule.
The detainee cases begin with Circuit docket 05-5062.
In a separate case involving a different group of detainees, the Circuit Court on Friday granted expedited review of the issue of whether the government may continue to hold detainees at Guantanamo after they have been determined not to be “enemy combatants.” A federal judge has ruled that the federal courts can offer no remedy to a group of Chinese Uighurs who remain at the prison camp in Cuba even though the military has found there is no military need to keep them. They continue to be held at the camp because there is no country to which they could be sent.
That case is Qassim, et al., v. Bush (05-5477). The detainees in that case also have asked the Supreme Court to take their case, and decide it before the Circuit Court does. (Qassim v. Bush, Supreme Court docket 05-892). The Supreme Court has not yet scheduled that case for consideration. The government’s response is due Feb. 21.
The Circuit Court said it would hold an oral argument on that case after the briefs are filed. The last brief is due on March 22.
Circuit Judge David Sentelle sits on both of the panels involved in these new orders. He is joined on the detainee cases panel by Circuit Judges Raymond Randolph and Judith Rogers, and on the Uighurs panel by Circuit Judges Merrick Garland and David Tatel.
The effect of the Detainee Act on pending cases is also being explored by the Supreme Court in the case of Hamdan v. Rumsfeld (05-1840, a challenge to the war crimes “military commissions” at Guantanamo. The government has filed a motion to dismiss that appeal because of the new Act; Hamdan’s reply is due on Tuesday. The Court will consider the dismissal motion at its Conference on Feb. 17, according to the Court’s electronic docket.
