Analysis
 The Supreme Court, in a four-sentence order without explanation, and a few comments in an opinion in another case, has set off a sharp dispute about whether it has put an end to the two-year courthouse battle over Congress’ preferred method for civilian review of military detention decisions. The questions now arise: is the D.C. Circuit Court’s hard-fought ruling in Bismullah v. Gates a dead letter, and, has the Detainee Treatment Act of 2005 died along with it?
The Circuit Court may soon provide some answers. In the process, it may offer some significant interpretations of what the Supreme Court may have wanted to happen as lower courts continue to sort out detainees’ rights. (Because Congress is unlikely to act on Attorney General Michael B, Mukasey’s proposal to repeal the DTA, the courts will have the task of sorting this out.)
The underlying controversy goes back to 2005. After Congress had grown worried that the federal courts would be swamped with cases by Guantanamo Bay detainees testing their long-term captivity, it passed DTA that year (reinforced in 2006 by the Military Commissions Act). The idea was to scuttle all of the habeas cases, and set up an alternative mode of civilian court review, more limited than habeas, and assigned to the D.C. Circuit Court. Its task: judge the validity of detention rulings made by the Pentagon’s Combatant Status Review Tribunals.
Bismullah, originally filed at the Circuit Court in June 2006, was the case the Circuit Court chose, along with lawyers for both sides, for a thorough exploration of how rigorous that Court would be in reviewing some 190 cases growing out of CSRT decisions designating detainees as “enemy combatants.”
When the Supreme Court last year agreed to rule on the basic legal rights of Guantanamo detainees (in Boumediene v. Bush, 06-1195), it said it would be interested in what the Circuit Court did in the Bismullah case.
A three-judge panel of Circuit judges ruled a year ago that the Pentagon and other government agencies would have to produce a potentially wide array of information about detainees, to make the system of civilian review work as the panel thought Congress intended. It was not enough, the panel declared, to have before it only the material that a CSRT actually had considered.
That was a bitter blow to the government, and it produced sworn statements by the entire top rank of U.S. intelligence officials saying that the decision posed a serious threat to the war effort and to national security generally.
That ruling ultimately split the full Circuit Court 5-5 in February, when it denied en banc review, and the case then was swiftly appealed by the government to the Supreme Court (Gates v. Bismullah, 07-1054). The Court did not act on it, simply leaving it on its docket while it studied and then decided Boumediene, producing on June 12 a ruling that Guantanamo prisoners had a constitutional right to pursue habeas challenges to their continuing detention. The detainees need not wait for DTA review, the Court said, but it added that the Circuit Court’s DTA role remained “intact,” as did the Pentagon’s CSRT panels.
Eleven days later, the Court sent the Bismullah case back to the Circuit Court. The four-sentence order on June 23 refused to block the Circuit Court ruling, but, in another part of the order, it set aside that ruling — that is, it “vacated and remanded” it to the Circuit Court “for further consideration in light of Boumediene.”
The case is proceeding anew in Circuit Court (Circuit docket 06-1197), and dispute between the government’s and detainees’ lawyers has now resumed, giving the Circuit Court these conflicting options: put the Bismullah case on hold and let detainee habeas cases go first (in District Court), dismiss it but with a chance to refile it later, or reinstate it as a fully binding ruling so that the DTA review process can continue in the Circuit Court even while the detainees’ habeas cases unfold in U.S. District Court. Briefing on these options is continuing, so it is unclear when the Circuit Court will rule.
The Justice Department is keenly interested in having the DTA process put on hold. In fact, it did not wait for the Supreme Court to act on the Bismullah case before it returned to the Circuit Court and asked that the decision be “held in abeyance.” In its motion, filed soon after Boumediene was decided, argued that this would “avoid the duplicative proceedings and a waste of scarce judicial and governmental resources” if both DTA and habeas tracks proceeded simultaneously.
Relying on the Supreme Court’s Boumediene ruling, the Department said the Justices had mandated that the habeas cases “move forward now.” Since the Supreme Court in Boumediene had found the DTA regime an inadequate substitute for constitutional habeas, the motion said, “it makes sense” to hold some 190 DTA cases in abeyance rather than letting them continue even while more than 200 habeas cases continue in District Court.
The defense and intelligence “resources” of the government, the motion said, need now to be focused on preparing materials to respond to the habeas challenges. It would minimize “disruption to military operations” to allow only one track at a time to proceed, the Department asserted.
In a later brief, the Department argued — as it had in appealing Bismullah to the Supreme Court — that that decision was wrong and, in the wake of the Boumediene decision, the underlying rationale of Bismullah (that rigorous court review was necessary since Congress had taken away habeas rights) no longer has any force. The Department finds a number of comments in the Boumediene opinion supporting its view that Bismullah and Boumediene cannot be reconciled with each other.
The detainees’ lawyers are resisting that approach and the attempt to sdetrack Bismullah, along with DTA reviews, at least temporarily. The Supreme Court, they argued, made ckear in Boumediene that “both DTA and habeas actions are available to Guantanamo detainees.” The two different channels of review do not conflict, the attorneys argued. Moreover, since it is unclear just what future course each channel will take, they should be allowed to go forward without delay of either, the counsel contended.
The defense team also said that the Bismullah decision should proceed because it will have an impact on all other DTA cases, since it will again establish the scope of the government’s duty to reveal in civilian court what it knows about detainees, beyond what the Pentagon laid before the CSRT panels.
The detainees’ lawyers have not been content merely to resist the government plea to put Bismullah aside. They filed their own motion, asking the Circuit Court to put its July 2007 ruling back into effect, unchanged. Nothing in the Supreme Court’s Boumediene decision, the motion contended, resolved the core issue in Bismullah about the government’s duty to provide what it knows about detainees so that they are better able to challenge their designation as enemies.
Not all detainees want to pursue habeas, the lawyers contended, and even those who do should not have to forfeit their right, under DTA, to pursue a second line of challnege in the Circuit Court. “These men have been detained for many years without access to an impartial decision maker,” so both options for challenging continued captivity “should proceed quickly,” their attorneys said.
One more brief is due in the Circuit Court in this controversy, and then a decision — on one or both of the competing motions — will follow in coming weeks.
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