Lawyers for some of the detainees involved in cases the Supreme Court already is preparing to decide have argued in a new brief that the Justices should move forward with that ruling without bothering with a new government appeal in other cases. In a supplemental brief filed late Thursday (and made available Friday) in Al Odah v. U.S. (06-1196), the attorneys said that nothing can be done to salvage the current system of court review of detention decisions made by the military at Guantanamo. The new brief can be downloaded here.
In effect, the new brief seemed to be suggesting that the government’s appeal (also filed Thursday) in the case of Gates v. Bismullah (07-1054) involves a dispute over the scope of judicial review that is almost beside the point. “Fundamental inadequacies all remain” no matter how the task of judicial review is expanded or limited under the existing Detainee Treatment Act and military regulations, the brief contended.
The government’s appeal in Bismullah focused directly on a dispute that split the D.C. Circuit Court 5-5 — just how much information from government files must be turned over to the Circuit Court, and to detainee lawyers, as the Circuit Court judges the validity of Pentagon decisions to keep prisoners confined at Guantanamo by designating them as “enemy combatants.”
The detainees’ new brief, while filed almost simultaneously on Thursday with the government’s new appeal, was not intended as a response to the Bismullah petition. Rather, it was simply to inform the Justices that the Circuit Court had finished work on the Bismullah case, and to argue the effect of that — or the lack of any effect at all — on the pending Al Odah case (and on the companion case of Boumediene v. Bush, 06-1195), the combined cases the Court had heard on Dec. 5. It is understood that lawyers for detainees in the companion Boumediene case plan to file a further brief of their own next week.
The Circuit Court’s ruling in the Bismullah case, the detainees’ new brief asserted, “does nothing to alleviate the fundamental structural inadequacies” of the Detainee Treatment Act judicial review process. Those “inadequacies,” it said, make clear that the process is not an adequate substitute for the full-scale review of detention that detainees would get if allowed by the Justices to pursue habeas challenges to their continued imprisonment.
It has already taken more than a year, the brief noted, for the Circuit Court to complete just the first step in reviewing detention decisions under the DTA (Congress’ chosen substitute for actual habeas review). None of the cases of actual review of any detention ruling has gone forward yet, it added.
Thus, the brief said, the length of the dispute over a “threshold issue” — that is, the issue at the heart of the new government appeal in Bismullah, dealing with the scope of judicial review under DTA — “shows just how patently ineffective the DTA review process is.”
Thus, the brief concluded, the Supreme Court should now move forward with a decision in Boumediene/Al Odah, “and remand for the district courts to hold the habeas hearings” the Supreme Court had ruled in 2004 that the detainees were entitled to pursue. “There can be no acceptable legal excuse for the continued denial of a fair hearing in which these detainees can finally confront the accusations against them and challenge their indefinite detention in U.S. custody,” the brief said in closing.
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