Detainees seek rehearing
on Apr 29, 2007 at 4:51 pm
Turned down last week by Chief Justice John G. Roberts, Jr., in one effort to gain time to test their legal rights in lower courts, Guantanamo Bay detainees late Friday sought to draw the full Court back into the controversy. They filed two petitions for rehearing, one in each of the two cases in which the Court had denied review April 2, and simultaneously asked the Court not to act on the new filings until after the detainees complete appeals in the D.C. Circuit Court. Friday was the deadline for seeking rehearing of the orders denying review.
The petiton for rehearing in Boumedienev. Bush (06-1195) can be found here. Relying on the arguments in that filing, a separate rehearing petition was filed in Al Odah v. U.S.; it can be found here. The motion to defer consideration is here.
In addition, as required under the Court’s Rule 44, the detainees’ lawyers filed certificates saying the rehearing requests were filed in “good faith” and not for delay, and that the request was based on “intervening circumstances of a substantial and controlling effect and other substantial grounds not previously presented.”
Rehearing peititons go to the full Court, and can be granted only by a majority of the Court. No response to such a petition is allowed, unless the Court asks for it, but ordinarily rehearing will not be granted until the other side is invited to respond, according to the Rules. Last Thursday, the Chief Justice turned down two pleas — to suspend the order denyhing review of the two appeals, and extending for four months the deadline to seek rehearing. After that ruling by Roberts, the detainees’ only other optiion was to promptly seek rehearing.
Lawyers for the detainees, whose legal fate has only recently drawn the interest of major news organizations, have been maneuvering for more than three weeks to set up a new chance to challenge the constitutionality of the action by Congress last year to scuttle all habeas challenges by war-on-terrorism captives, leaving them only with limited review before the D.C. Circuit Court of their detention based only on military evidence. The core of the strategy is to try to keep the detainees’ original habeas challenges alive on a temporary basis, until a new test of Congress’ authority to wipe out habeas pleas can be set up for a return to the Supreme Court..
Another principal aim of the legal strategy is to try to keep in place protective orders (issued in the original habeas cases) that preserve lawyers’ access to the detainees and to information to defend their clients in military proceedings and before the D.C. Circuit in the status reviews.
The rehearing petition along with deferral of consideration of that petition, the Boumediene group argued, “will preserve the best vehicle” for returning to the Court to challenge Congress’ authority to strip courts of habeas jurisdiction — the main issue the Court declined to answer, at this time, in its April 2 refusal to hear the two detainee appeals.
“It would be a substantial waste of judicial resources — as well as a profound deprivation of [detainees’] right to speedy habeas review of executive detention that has already lasted more than five years — to force [detainees] to re-file an original habeas action in the district court and once again pursue every issue that has already been exhaustively litigated in this case,” the petition contended.
Terminating the Supreme Court’s involvement with the cases now, by acting on and denying the rehearing petition, “is likely to strip [detainees] of their ability to communicate meaningfully with counsel, as well as result in the destruction of critical classified materials that are essential to [their] pursuit of relief,” the petition said.
In asking for deferral of the rehearing question, the detainees sought to have the Court put the matter on hold until after the D.C. Circuit Court resolves the limited challenges the detainees are allowed to make under the Detainee Treatment Act of 2005. The scope of that review, the petition said, and the relief open to detainees, will be clarified by decisions in the court of appeals expected “over the course of the next Term. Those decisions are highly likely to remove any obstacle” to Supreme Court review of the important questions raised in the two petitions for certiorari, the filing argued.
Asserting that the rehearing request satisfies the requirements of Rule 44, those circumstances will soon arise, according to detainees’ counsel. “The pursuit of DTA remedies in the coming months by petitioners and other detainees constitutes an ‘intervening circumstance of a substantial or controlling effect’ and will also give rise to ‘other substantial grounds not previously presented,” according to the petition.
The lawyers promised to “assiduously prepare” their new DTA challenges, and press them “vigorously in pursuit of an expeditious resolution.”
The government, on the other side of the cases, could be asked for a response fairly soon, although there is no certainty of that. If asked, the government presumably would resist the requests. The government has a strong interest in getting all existing habeas cases dismissed, to move on to the DTA review at the Circuit Court level. It also is seeking, at the Circuit Court, a new “protective order” that would limit lawyers’ access to detainees, among other restrictions. The Circuit Court will hold a hearing on those issues on May 15.
