Detainees seek May 7 hearing, raise merits issues

By Lyle Denniston
on Mar 5, 2007 at 11:10 pm

(NOTE: This post originally appeared at 11:36 a.m. Monday. The version below is a substantial revision of the post, with changes throughout, to incorporate the second petition for review, in Al Odah, et al., v. U.S. and a new friend-of-court brief, both filed Monday night.)

Attorneys for 45 detainees at the military prison camp at Guantanamo Bay, Cuba, asked the Supreme Court on Monday to rapidly review their attempt to regain the right to challenge their detention in federal court, urging the Court to hold a hearing on the issue on May 7. In two petitions seeking review of a Feb. 20 D.C. Circuit Court ruling ordering the dismissal of habeas challenges, lawyers for detainees who are nationals of ten nations also asked the Court to decide, if jurisdiction still exists, some basic questions about constitutional rights for captives at Guantanamo. One petition seeks a ruling that the detainees’ challenge is strong enough that they are at least entitled to a hearing on it. The other asks the Court to rule that the detainees have significant constitutionally-based due process rights, and rights under the Geneva Convention,

The petition filed first on Monday was in Boumediene, et al., v. Bush, et al. is here, the appendix is here, and the motion to expedite is here. The petition was docketed as 06-1195. The second petition was in Al Odah, et al., v. U.S.. The Al Odah petition (docket 06-1196) is here, the appendix is here, and the motion to expedite is here. In addition, a group of former federal judges, diplomats, military officers and others filed an amicus brief urging the Court to hear the new appeals. That brief can be found here.

“This case,” lawyers in the Boumediene case argued, “presents questions central to the rule of law….The national importance of these questions would warrant this Court’s review on their own.” But, it added, review “is even more imperative in light of the oppressive conditions [detainees] endure” at Guantanamo. Attorneys in the Al Odah case told the Court: “What ultimate it at stake here is America’s commitment to its core values and the rule of law. That commitment requires that this Court…make clear that our government cannot evade the core constitutional limits on its authority – and the fundamental values of fairness for which our country is known – simply by placing its prisoners in areas beyond our technical sovereignty.”

The two petitions ultimately are traced back to conflicting rulings by judges in the U.S. District Court in Washington, D.C. But the D.C. Circuit has now ruled that no District Court has any jurisdiction to allow the detainees to continue their challenges; the Circuit Court ruling thus does not resolve the conflict between the two District Court judges in analyzing whether Guantanamo detainees have any legal rights whatsoever.

Even if the Supreme Court grants review of these detainees’ cases, that may not settle all issues surrounding habeas pleas by detainees held at Guantanamo Bay. The cases do not deal with the rights of individuals who are facing war crimes trials before military “commissions” set up under a law passed by Congress last Fall — the same law that moved to scuttle all habeas cases by detainees. The right to challenge commission trials is at issue in a separate appeal that the Supreme Court on Monday declined to expedite (see post below on the Court’s order in the Hamdan case).

Along with the petitions, the attorneys filed separate motions to expedite. Here is the schedule that the lawyers proposed, noting that the U.S. Solicitor General supports expedition and will respond to the petitions by March 21:
** Case to Conference of the Justices March 30, on whether to grant.
** If review is granted, detainees’ briefs due on April 16.
** Government brief due April 27.
** Detainees’ reply due May 1.
** Oral argument on May 7.

The Boumediene petition poses two questions: first, has Congress in the Military Commissions Act of 2006 legally stripped federal courts of authority to hear any habeas challenges by Guantanamo detainees,and, second, whether the prisoners’ habeas claims do establish, as a legal proposition, that their more than five-year confinement is unlawful, requiring that they be ordered released, or at least given a court hearing on these claims.

The Al Odah petition raises four questions: first, whether the D.C. Circuit Court was wrong in dismissing the habeas cases and holding that the detainees have no common law right to habeas and no constitutional rights of any kind; second, whether the detainees had a right to the writ protected by the Constitution’s Suspension Clause; whether the detainees are entitled to protection under the Fifth Amendment to due process-based liberty; and, fourth, whether the Military Commssions Act should be read not to take away courts’ jurisdiction, thus averting related constitutional issues.

The Boumediene lawyers argued that the Court should act promptly, saying that “this case has progressed at an unusually slow pace in the lower courts.” The government, the attorneys added, has continued to resist habeas review of detainees’ challenges to their captivity some two and a half years after the Supreme Court had said they could file such challenges (the ruling in Rasul v. Bush in 2004). “Not one of the hundreds of Guatanamo habeas petitioners has received a judicial hearing on the merits of his petition,” that motion to expedite noted.

In challenging the D.C. Circuit’s decision that Congress had validly stripped courts of any jurisdiction to hear habeas pleas by detainees, the Boumediene petition said that decision “cannot be reconciled with this Court’s considered conclusion that the historical writ” extends to all areas under the federal government’s control.

But, going beyond their jurisdictional argument, the Boumediene group argued that the Court should go ahead and rule at least partly on the merits of their challenges. “The Court should…determine that petitioners’ habeas petitions demonstrate unlawful confinement and warrant a grant of habeas relief or, at the very least, a hearing on the merits.” While the D.C. Circuit did not reach that issue, because of its finding of a lack of jurisdiction, “the matter has been fully aired and is the subject of conflicting decisions in the United States District Court for the District of Columbia, which is the only court in which Guantanamo habeas cases have been filed. The government claims an immense power unprecedented in our history: to imprison foreign nationals, without bringing criminal charges or providing fair process, for an indefinite period.”

In the Al Odah petition, attorneys contended that the Supreme Court’s decision in Rasul v. Bush, allowing detainees to file habeas challenges, established “a common law right to habeas that Congress cannot suspend without meeting the requirements of the Suspension Clause. Thus, Congress’ passage of the MCA following Rasul does nothing to alter the Court’s conclusion that the detainees have a right to habeas.”

The Circuit Court, the appeal asserted, “seems to have decided the issues before it as if Rasul did not exist.” The appeals court has, in effect, made Rasul “meaningless,” the lawyers added, raising questions “that go to the essential meaning and purpose of habeas and the Suspension Clause, and of the constitutional separation of powers established by our Founders.”

In addressing the claims that the detainees retain substantive constitutional rights, the Al Odah appeal mounts a broad challenge to the Circuit Court’s reliance upon the Court’s 1950 decision in Johnson v. Eisentrager, asserting that the Supreme Court’s Rasul decision provides the basis for distinguishing the present case from Eisentrager and from other precedents upon which the Bush Administration has relied in arguing against legal rights for the detainees.