Detainees ask Roberts for temporary aid
on Apr 25, 2007 at 4:08 pm
UPDATE 4:38 PM: Applications in 06A1001 and 06A1002 are now available for download.
The active new round of legal maneuvering over the fate of the Guantanamo Bay detainees returned to the Supreme Court on Wednesday. Attorneys for detainees whose appeals were denied by the Court on April 2 asked Chief Justice John G. Roberts, Jr., to delay any further action to implement that denial to give them time to pursue a new remedy. In two separate applications, the detainees’ counsel asked that the Court to keep its formal denial order on hold, and also to give them four months (until August 27) to ask the Justices to reconsider the denial. Ordinarily, a petition to rehear the denial of review would be due this Friday.
In the meantime, the applications said, the detainees expect to be able to develop information to show that the judicial review process that awaits them in the D.C. Circuit Court will not be an adequate alternative to the broad challenges they had been pursuing for several years in habeas cases in U.S. District Court. Congress moved last Fall to scuttle all of those habeas cases, and the D.C. Circuit Court upheld that action on Feb. 20. That is the decision the Supreme Court declined to review on April 2.
The detainees’ application to “suspend the order denying certiorari” is docketed as 06A1001 and be found here; the application for “extension of time within which to petition for rehearing” is 06A1002 and can be found here. The applications were filed in Boumediene v. Bush (06-1195) and Al Odah v. U.S. (06-1196).
In the suspension request, the counsel said that the government last week filed motions in the District Court to dismiss all pending habeas cases there — an action that they said will have the effect of limiting or cutting off access of lawyers to the detainees and access to information they need to protect whatever legal rights detainees have. Suspension of the denial order will simply maintain the status quo, since the Boumediene and Al Odah cases would remain technically before the Supreme Court and thus would not go back to the Circuit Court or to District Court to alter the present situation.
“Absent suspension of the order denying certiorari,” the application said, “the district court will be free to grant the government’s motion [to dismiss], inflicting irreparably harm upon” the detainees. The government “will completely control the terms and conditions of communications” between the captives and their lawyers, at least until the D.C. Circuit Court issues new orders governing such contacts. The government also would be free to shift detainees away from Guantanamo, perhaps to countries where they could be tortured and defeating any chance that U.S. courts could aid them. Moreover, the application said, lawyers will be required within 60 days after dismissal of the cases to destroy their files in the habeas matters. Nothing will happen in the habeas cases in the District Courts in the meantime, because they are all currently stayed, the application said.
The detainees also argued that, if they are put in position to ask the Supreme Court to reconsider its denial of the Circuit Court ruling, they may persuade the Court to overturn the Circuit Court ruling by showing that the remedies available from here on are inadequate and would be futile.
The Detainee Treatment Act of 2005, the application noted, sets up a procedure in the D.C. Circuit Court to review the military proceedings leading to continued detention orders of the Guantanamo captives. But that limitied review is no substitute for potentially sweeping habeas review in District Court, the application contended.
In the application for extension of time to seek rehearing of the denial order issued by the Justices April 2, the detainees’ counsel said the extra 120 days they are requesting will provide them with a chance to come back to the Supreme Court after the D.C. Circuit Court and the District Courts have acted on the government’s maneuvers in those cases to get rid of the habeas cases and to get the limited review started in the Circuit Court. That would demonstrate, this application said, that the detainees have done all that they could to protect their rights in lower courts, and should have a new chance to get their claims before the Supreme Court.
But, the application added, even if the government does not get what it is seeking in lower courts, the reality about the type of review available in the Circuit Court will become apparent by August, showing that it is inadequate and setting the stage to seek a reopening of the cases in the Supreme Court.
The Chief Justice has the authority to act on the applications on his own, or to refer them to the full Court.
Meanwhile, another detainee at Guantanamo Bay, a Libyan named Abu Abdul Rauf Zalita who is seeking asylum in the U.S., asked the Chief Justice to bar his imminent transfer from Guantanamo to Libya. He said that he has been wrongly associated with a Libyan terrorist group, and that members of that group have suffered torture in Libya. That fate awaits him if he is returned here, his application (06A1005) contended. The Chief Justice asked the Justice Department to respond to the application by 4 p.m. Monday.
