U.S. plans swift new appeal on detainees
on Feb 5, 2008 at 4:03 am
The Justice Department disclosed Monday that it will file a swift new appeal to the Supreme Court, in a new round in the continuing legal combat over the Guantanamo Bay detainees. In motions filed in the D.C. Circuit Court, the Department said that U.S. Solicitor General Paul D. Clement will file an appeal to the Supreme Court by Feb. 14 in consolidated cases testing the procedures that will be used for judicial review of military decisions to continue holding Guantanamo prisoners in that island prison camp in Cuba. Clement will ask the Supreme Court to expedite the new appeal, hoping for a decision during the current Term. The Court is already considering two major cases on the legal rights of detainees, and Clement is expected to argue that those and the new appeal are part of a package and ought to be considered back-to-back if not together.
The Department filed two motions in the Circuit: one asked for a delay of the Circuit Court’s ruling last July 20 laying down requirements for the information the government must supply to the Circuit Court as that court weighs military designations of Guantanamo prisoners as “enemy combatants,” with the delay to last until the Supreme Court acts on the new appeal of that decision; a second asked for a delay of some 180 cases pending in the Circuit Court in which prisoners are challenging their “combatant” designations. If the Circuit Court does not delay implementation of its July 20 on the record to be used in court review of detainee challenges, the Department said, it will ask the Supreme Court to do so. The motions were filled with foreboding about the burdens on the government if it has to begin carrying out the July 20 Circuit Court ruling now, without a chance to test it in the Supreme Court. It said the consequences would be drastic, and could impair its ability to wage the “war on terrorism.”
The two motions can be found here and here. The government made its move even as the Supreme Court apparently was considering whether to call for new briefs on the interrelationship between the two pending cases on detainees’ legal rights, and the D.C. Circuit Court’s action on court review of detainees’ challenges.
The latest gestures by the government may well complicate the Court’s anticipated decision this Term in the cases of Boumediene v. Bush (06-1195) and Al Odah v. U.S. (06-1196). Those cases test whether the Guantanamo detainees have any constitutional rights, whether they retain any right to file habeas petitions to challenge their long-term confinement, and whether the court review that Congress wanted substituted for habeas review is an adequate replacement. While the Supreme Court held a hearing on those cases on Dec. 5, it had indicated earlier that it would call for supplemental briefs after the Circuit Court finished its work on the follow-up issues involving the scope of the government’s duty to reveal to the courts the types of information it has about detainees, perhaps including even information that was not considered by military panels (Combatant Status Review Tribunals) in deciding for or against “enemy combatant” designations. The Circuit Court issued its decision on that information-supplying question July 20 in the cases of Bismullah v. Gates (Circuit docket 06-1197) and Parhat v. Gates (06-1397), but since then it has been pondering a Justice Department plea to reconsider that ruling before the full D.C. Circuit Court of ten judges. Last Friday, dividing 5-5, the Circuit Court refused to rehear the decision, thus making it final.
By signaling that it is moving ahead now with an appeal in the Bismullah/Parhat litigation, the Justice Department put the Supreme Court on notice that it wanted swift action, since it indicated in its motions that it believes the Boumediene/Al Odah cases and the Bismullah-Parhat cases are intertwined. Whatever the Court might be preparing to decide in the former will surely affect how the Circuit Court handles detainee cases governed by the latter ruling, according to the motions filed Monday.
Some briefs are coming due in the Circuit Court in the pending detainee cases there, and the government said it needs to delay those filing deadlines while it moves to the Supreme Court with the new test case in the Bismullah/Parhat litigation. It asked for a 14-day delay in briefs that are now due on Wednesday in that court. The 180 or so cases now pending there were filed by Guantanamo prisoners under the Detainee Treatment Act of 2005 — the law that Congress passed in hopes of shunting all detainee cases to the Circuit Court with less rigorous judicial review than would be available if the prisoners retained the right to bring habeas petitions. Congress, in passing the Military Commissions Act of 2006, sought to wipe out all habeas challenges by war-on-terrorism captives, leaving them only the option of pursuing the more limited DTA route.
In the Boumediene/Al Odah cases now awaiting a decision in the Supreme Court, the Justices are weighing whether Congress had the constitutional authority to wipe out habeas rights for the detainees. It is unclear whether the Justices have made much progress in crafting a ruling in that case, even though two months have passed since it heard oral argument. The Court has not yet indicated whether it will follow up on its earlier indication it would ask for added briefing in the Boumediene/Al Odah cases on the impact on them of the Bismullah/Parhat litigation once that was resolved in the Circuit Court.
