Government: Detainee cases must start over
on Aug 1, 2006 at 7:00 pm
The Justice Department on Tuesday argued in a new legal brief in D.C. Circuit Court that detainees at the military prison camp at Guantanamo Bay, Cuba, cannot pursue any challenges to their wartime detention by relying on the Geneva Convention. Giving its fullest interpretation so far of the Supreme Court’s June 29 decision in Hamdan v. Rumsfeld, the Department also argued that Congress has required that all detainees’ claims against their detention must now be processed only by the Circuit Court under a narrower form of review. The detainees, it contended, can still raise all of their constitutional claims, but no Geneva treaty claims.
The D.C. Circuit is weighing hundreds of detainee cases involving individuals who have been held but have not been charged with any crimes, and do not now face any trials before military commissions. On July 26, the Circuit panel asked the government and detainees’ lawyers to file additional briefs to offer their views on the impact on the detention cases of the Hamdan ruling. (The Circuit Court is considering two packets of cases, Boumediene v. Bush, 05-5062, and Al Odah v. U.S., 05-5064.)
The government’s supplemental brief can be found here. The detainees’ lawyers are to respond by next Tuesday, and the government reply brief is due by Aug. 15.
The Justice Department, in arguing the Geneva point, said that the Hamdan ruling addressed prisoners’ rights under the Convention’s Common Article 3 only in the context of the war crimes “military commissions.” The Supreme Court, it contended, “did not disturb the venerable rule that treaties are presumed not to create rights judicially enforceable by private parties.” The several versions of the Convention, it said, were found not judicially enforceable in private lawsuits by the Supreme Court’s 1950 decision in Johnson v. Eisentrager, and the Hamdan ruling did not disturb that.
Thus, it summed up, “nothing in Hamdan undermines our contention that the Geneva Conventions create no rights judicially enforceable by private parties. For that reason, and those stated at length in our merits briefs, the treaty claims in these cases are not judicially enforceable.” But, in any event, it added, the treaty claims raised by the detainees “are meritless.” Hamdan only dealt with the Conventions in terms of criminal punishment by a court or tribunal, and refused to consider any application of the Conventions to detention of “enemy combatants.”
On the scope of Hamdan as it applies to the court-stripping Detainee Treatment Act of 2005, the Department’s brief conceded that the Supreme Court had taken away one of its prior arguments on jurisdiction under that Act: that all parts of the Act’s effective date provisions made it clear that all pending detainee cases must be shunted them all to the D.C. Circuit for exclusive review.
But, it went on, the Court did not undermine what the Department said was its “primary argument” — that any detainee who has had his combatant status reviewed by a military panel has lost all right to pursue a habeas challenge, and must only challenge a detention order before the Circuit Court. All of the detainees have had such a panel review, it said, and each of them is necessarily challenging the validity of the designation as an enemy combatant.
“Thus, the habeas claims in these appeals should still be transferred to this Court and adjudicated,” the brief concluded. “The transfer of jurisdiction should not delay prompt resolution of those issues by this Court.”
