Administration, senators call for detainee rulings
on Feb 17, 2006 at 4:28 pm
(UPDATE: The following report has been updated to include material from the new brief filed by the Justice Department in the D.C. Circuit. The filings came in the combined cases that begin with Boumediene v. Bush [05-5062].).
The Bush Administration and two Republicans who helped negotiate the terms of the new Detainee Treatment Act, stripping courts of power to decide existing court challenges by war-on-terrorism prisoners at a military prison camp in Cuba, urged the D.C. Circuit Court on Friday to go ahead and rule on the captives’ claims but only within the limited court review system newly set up.
The Administration views, expressed in a new filing by Solicitor General Paul D. Clement and other Justice Department lawyers, argued that the detainees are seeking a “breathtaking” new constitutional ruling giving foreign nationals held outside the United States a constitutional right to bring a habeas challenge to their imprisonment at Guantanamo Bay in Cuba. “Because [the detainees] are aliens outside the sovereign territory of the United States,” the brief contended, “they have no constitutional rights” under the Constitution’s Suspension Clause, which limits the situations in which the writ of habeas corpus may be withdrawn.
But, the brief went on, even if the detainees have some rights under that clause, the new Act would not undermine those rights. The new court review process created by the Act, it contended, “is more than constitutionally sufficient.” If the cases proceed in the D.C. Circuit, the government said, detainees may raise there any “concerns about the legal adequacy” of the process the military used to declare them to be “enemy combatants” and to decide that they must remain confined.
The brief did argue, though, that the detainees would not be entitled, in pursuing their challenges in the D.C. Circuit under the new law, to have the Court probe into the facts of the “combatant” designations. “Habeas courts,” it said, “do not find facts, but rather engage in highly deferential sufficiency review.”
In the amicus brief filed by Senators Lindsey Graham of South Carolina and Jon Kyl of Arizona, the arguments exactly parallel the views of the Bush Administration on the scope of the new Act and what the courts should do with already-pending cases.
Both briefs contended that, because of the new law, federal District Courts have lost all authority to hear any challenge by a prisoner at Guantanamo Bay, but that the D.C. Circuit may allow those who have been designated as “enemy combatants” to re-file their challenges in the Circuit Court so that the cases can go forward there. A variation of this argument has also been made in the Supreme Court by the Administration, urging it to dismiss a pending challenge to the new war crimes “military commissions” set up for a small number of Guantanamo detainees. Those facing war crimes charges, however, would not be able to pursue a new challenge in the Circuit Court until they first were convicted.
The legal arguments in the Circuit Court briefs essentially make three points: first, that the text of the new Act and its legislative history make clear that all pending cases have been wiped out because they are habeas challenges and Congress has nullified that basis for court jurisdiction; second, that wiping out pending cases does not amount to an unconstitutional suspension of the habeas writ because the detainees have no constitutional right to pursue habeas, and third, there is no need to dismiss outright all pending cases, but to allow them to continue in the D.C. Circuit.
The D.C. Circuit had called for additional briefs in the pending cases, on the impact of the new Act on the existing challenges. It expressly asked attorneys to file theiir views on what the Circuit Court should do with two conflicting District Court rulings on detainees’ rights, should it find that Congress has taken away habeas jurisdiction. The government and its supporters were filed by the Friday deadliine. Two groups of detainees are to file responses on March 10, with a government reply on March 17. The Circuit Court will hold a hearing on the issue March 22.
