Detainees: captivity issue should be decided now
on Aug 9, 2006 at 3:54 pm
NOTE: This post discusses the continuing legal fallout of the Supreme Court’s war-on-terrorism decision on June 29 in the case of Hamdan v. Rumsfeld (05-184).
Lawyers for detainees at the military prison camp at Guantanamo Bay, Cuba, on Tuesday argued in new legal briefs in D.C. Circuit Court that they are not challenging any decision by a military panel to keep them in captivity, but rather are contesting their original detention and long-imprisonment without beinig charged with any crimes. Theirs is a habeas challenge to the entire system of detention, they contended, and that kind of case has not been ejected from federal courts by Congress’ action last year in passing the Detainee Treatment Act.
The detainees’ attorneys also argued that the prisoners have a right to contest their detention by relying upon the Geneva Convention, because that puts limits on presidential wartime powers on the treatment of prisoners.
These were the main arguments in two supplemental brief filed in two packets of detainee cases the Circuit Court is currently reviewing (the lead case in one group is Boumediene, et al., v. Bush, 05-5062, and in the other group is Al Odah v. U.S., 05-5064). The Boumediene brief can be found here. The Al Odah brief is here.
The D.C. Circuit had asked both sides for legal advice on the impact of the Supreme Court’s Hamdan v. Rumsfeld decision on lower federal courts as they process detainees’ habeas cases. The Justice Department argued a week ago that the Hamdan decision did not alter the government view that the Detainee Treatment Act scuttled all of the pending habeas challenges, and pushed all of them into a more limited review path before the D.C. Circuit. It also argued that the decision did not give the detainees any right to challenge their detention under the Geneva Convention, and that they have never had any such right.
Contesting the government argument that Congress had set up an “exclusive” review mechanism for all detainee cases, including those filed before the Act took effect, the detainees’ attorneys said the Supreme Court had found there are two lines of Guantanamo cases. The first are the habeas challenges, the second are challenges to final actions by any form of military review tribunal, according to the briefs. The former were not nullified by the Act, because they were filed before any military entity existed to determine the status of detainees.
“Hamdan’s holding that the DTA does not displace traditional habeas in pending cases, but rather coexists alongside it, forecloses the government’s assertion here [that the Act] ‘replaces’ or ‘precludes the exercise of’ habeas jurisdiction,” according to one of the new briefs..
The detainees’ challenges are aimed at “their indefinite detention, invoking the full breadth of inquiry permitted at common law and codified [by federal habeas statutes],” that brief asserted. The detainees, it added, “are therefore entitled to all of the procedural rights afforded by the habeas statute to test the legality of their Executive detention without charge or trial.”
The other brief stressed that the detainees are not contesting any final status ruling by a so-called “combatant status review tribunal,” but rather are challenging “the very legitimacy of the process on which the government relies to justify Executive detention.” The Defense Department, that brief contended, has not even created status tribunals that conform to the Detainee Treatment Act, so there are no final rulings to be challenged yet.
The new Circuit Court review process created by the Detainee Treatment Act, that brief argued, cannot be a substitute for habeas review, because it is too limited. It commented: “Any review process that limits the courts to determining whether the jailer has followed its own rules, and precludes an inquiry into whether the rules themselves are adequate and more than an empty shell, cannot be an adequate or effective substitute for habeas.”
Thus, both briefs argued, the Circuit Court has jurisdiction to decide the pending habeas cases, and should go ahead and rule on all of the detainees’ legal challenges.
Among the legal claims that the detainees are pressing, the Al Odah brief noted, is that the U.S. government in detaining prisoners indefinitely at Guantanamo Bay has violated the Geneva Convention. Contrary to the Justice Department argument that the detainees may not pursue any Geneva claims, because they are not enforceable in court, that brief said, “Hamdan held that all the detainees at Guantanamo may judicially enforce” those claims. The several version of the Conventions, it added, impose “law-of-war constraints” on the Executive Branch, and those limitations were incorporated in the 9/11 resolution that Congress passed in the fall of 2001
The Justice Department’s reply brief is due next Tuesday. The Circuit Court has not indicated whether it would hold a hearing on the impact of the Hamdan decision, or simply proceed to rule. The three-judge panel already has held two hearings on the cases.
