Detainees seek to block rehearing
on Sep 26, 2007 at 12:38 pm
Seeking to head off another round in the lower courts before the dispute goes on to the Supreme Court, lawyers for Guantanamo Bay detainees argued that the D.C. Circuit Court has no need to re-examine the procedures it has laid down for civilian review of the prisoners’ challenges to their long-term military captivity. The Bush Administration has asked for rehearing en banc of a July 20 Circuit Court panel decision on Detainee Treatment Act procedures, and told detainees’ lawyers to respond. The opposition motion, filed Wednesday, can be found here. The combined cases are Bismullah v. Gates (06-1197) and Parhat v. Gates (06-1397).
To the Administration claim that providing full information about each detainees’ status would pose major burdens, the detainees’ counsel countered that it was Congress that imposed the requirement for court review of that information, and the Circuit Court “lacks the power to excuse the government from the burden of judicial review.” Citing constitutional separation of powers doctrine, the detainees’ brief said that “if a problem exists at all, it is for Congress, not the Court, to address.”
And to the Administration claim, bolstered by strong statements from the top rank of intelligence officials, that forced disclosure of much of the information about detainees would imperil national security, the detainees’ lawyers responded that the Circuit Court has already adopted a “protective order” that will assure confidentiality where needed. “There is no basis for en banc review, certainly not before the Court’s safeguards have even to be tested,” the brief asserted. Moreover, it added, detainees’ lawyers already have higher security clearances than some of the civilian contractors who helped compile information for use against detainees.
The government has told the Circuit Court that, if rehearing is denied, it would then take this controversy on to the Supreme Court, seeking expedited review.
At the heart of this controversy are the roles of two institutions — Combatant Status Review Tribunals, set up by the Pentagon to review whether detainees should be designated as “enemy combatants” and thus could not be released from custody, and the D.C. Circuit, given the assignment by Congress to review detainees’ challenges to CSRT decisions. The government wants the D.C. Circuit’s role to be significantly narrower than the Circuit Court has now decreed, and especially wants to be requried only to supply for judicial review what was actually put before the CSRTs to make their findings about detainee status.
The government has suggested that the Circuit Court’s July 20 mandate, requiring disclosure to the Court and, to some degree, to detainees’ lawyers, of all government information bearing upon a given detainee, is based on a flawed perception that the data is all kept in one easily reached file box when in fact it is spread widely over many federal agencies. The detainees retorted on Wednesday with their own metaphor: “The government and [the intelligence officials] act as though the Court has ordered a search of the Library of Congress, book by book, as if there were no card catalogue.” In fact, the detainees’ counsel said, there are many paper files at Guantanamo Bay, and there are other sites that detainees’ counsel have pointed out to help the government search. The government, the lawyers argued, “simply advocates a rule that would ensure that the Court never learns” of what the government has about detainees.
The Circuit Court has ten active judges now. It would take the votes of at least six of them to grant rehearing en banc. The Circuit Court could act on the government request at any time; the government does not have a right to reply to the detainees’ answer.
In another development on detainees, lawyers for a group that may include as many as 40 prisoners asked U.S. District Judge Ricardo M. Urbina on Wednesday to reconsider his ruling last week ordering the dismissal of all of those habeas cases. In the motion, detainees’ counsel argued that the Supreme Court’s agreement to hear two detainee cases has put everything on hold, and that Judge Urbina thus lacks jurisdiction to dismiss the cases. The motion can be found here.
Among other reasons the detainees’ lawyers want those cases kept intact for the time being is that their dismissal may scuttle court orders giving the lawyers access to their clients at Guantanamo Bay.
