U.S.: No court review of Gitmo conditions
on Jul 11, 2008 at 8:11 pm
The Justice Department has urged the D.C. Circuit Court to set up a fast schedule leading to a ruling that, the Department argued, should reject the power of federal courts to examine detainees’ complaints that they have been mistreated while being held at Guantanamo Bay.
Congress has taken away any such authority, the Department contended, and the Supreme Court did not second-guess that in its new ruling June 12 on detainees’ legal rights. In a motion filed Thursday, and made available Friday in Paracha, et al., v. Bush, et al. (Circuit docket 05-5194 and others), the Department contended that no detainee has any right to contest his conditions of confinement at the military prison on the U.S. Navy base in Cuba.
Detainees, through their lawyers, have complained of inhumane or degrading treatment, sometimes reaching the level of torture, by military guards at Guantanamo. In particular, they have said they were denied adequate medical care, were kept for long periods in solitary confinement, subjected to nudity as a way to punish them, and made to undergo humiliating body searches. Their lawyers have contended that coercive tactics may have produced evidence against detainees.
The government’s opposition to civilian court review of such claims, based on a court-stripping law Congress passed in 2006, was one of a series of new developments as lower courts continued to be drawn further into issues stirred up by or left unanswered by the Supreme Court’s decision last month in Boumediene v. Bush (06-1195).
In other developments in recent days:
** Senior U.S. District Judge Thomas F. Hogan, working on arrangements to handle habeas challenges in scores of detainee cases, on Thursday ordered the Pentagon and State Department not to move any detainee out of Guantanamo without a month’s advance notice to his lawyers — at least in any case where the detainee’s lawyer seeks such a restriction, as they routinely have done. The order applies to 117 cases that involve detainees still at Guantanamo. (The D.C. Circuit Court is now considering a government argument that federal courts have no power to bar transfers of detainees.)
** In a second order, Judge Hogan on Friday declined to order the government to come up by next week with its initial justification for designating detainees as “enemy combatants” who must remain confined. Instead, he basically accepted a Justice Department plea to allow those reports to be produced in batches of 50 a month. The filing of these initial “returns,” this order said, must be at a rate of “at least 50 a month” but the first reports are due by Aug. 29 — some days earlier than the government had requested.
** That second order also required lawyers on both sides to file by July 21 status reports for each detainee still at Guantanamo, describing their current legal status. sorting out where each case stands procedurally, and indicating whether the government has agreed to share unclassified evidence it has not yet supplied to detainees’ lawyers in any form. Further, this order set July 25 as the deadline for written briefs on a variety of legal issues, including standards to define what rights the detainees may pursue as their habeas cases proceed, how much authority detainees’ lawyers will have to demand more information from the government, what role hearsay evidence might play, and which side has the burden of proof on legal questions.
** A second District judge, Emmet G. Sullivan, decided to handle eight cases without the coordination efforts being made by Judge Hogan. In an order issued Wednesday, Judge Sullivan recalled those cases, and ordered status reports in each to be filed by next Monday, July 14. After that, the judge said, he would “promptly schedule status hearings.” Among the detainees whose cases are in Sullivan’s Court are Ramzi Bin Al Shibh, considered by the government to be one of the “high-value detainees,” as it calls them, who allegedly were involved in planning the Sept. 11, 2001, terrorist attacks.
** Lawyers for detainees asked the D.C. Circuit Court to put back into effect a pair of rulings that require the Pentagon and Justice Department to produce significant amounts of information, to the Circuit Court and to detainees’ counsel, that bears on the legality of the Pentagon’s initial decisions to hold prisoners as “enemy combatants.” The Supreme Court on June 23 told the Circuit Court to reconsider those rulings (both in the case of Bismullah v. Gates) in the wake of the June 12 Boumediene decision on detainees’ rights. The information may be crucial to the Circuit Court’s review of initial detention decisions by the military. In the new motion, filed July 3, the prisoners’ lawyers said the Supreme Court said nothing on June 12 that would undercut the need for review of all of the government information that may bear on detainees’ status as enemy designees.
The Supreme Court’s Boumediene decision found a constitutional right for detainees to file habeas claims to challenge their confinement. The Court did so by striking down a part of a 2006 law (the Military Commissions Act) that stripped the courts of their previous authority to hear habeas pleas, so far as such claims were made by Guantanamo detainees. But the Court did not go on to say what other constitutional rights detainees may have.
In the Justice Department’s latest filing in the D.C. Circuit on detainees’ rights (this blog reported on Wednesday on another new filing), it made two arguments about the scope of the Justices’ Boumediene decision..
First, it contended, the Court did not rule on whether Congress had validly taken away detainees’ rights, in habeas, to challenge the conditions of confinement at Guantanamo. The decision, it noted, was confined to striking down the withdrawal of habeas challenges to detention itself. “The Court did not hold that there is [court] jurisdiction over actions brought by Guantanamo detainees challenging thier conditions of confinement,” the motion contended. It went on to argue that the 2006 law’s withdrawal of that jurisdiction remains intact.
Second, the Department argued in its new Paracha motion, the Boumediene decision “did not determine whether detainees have any constitutional rights beyond the privilege of the writ of habeas corpus.” It thus said it remains an open question whether detainees had a right to due process that would enable them to challenge the conditions of their confinement. (Although the Department, in its filing in the Circuit Court, did not state a specific position on whether it believes detainees lack any such added rights, it did make that argument directly on Friday in a new filing in District Court before Judge Hogan. No part of the Supreme Court’s Boumediene decision, the Department argued there, suggests that a detainee’s “constitutional habeas rights include a right to challenge any other aspect related to their detention beyond its legality.” This 26-page brief [together with a declaration by a military officer at Guantanamo] can be found, using the PACER system, on the District Court’s website under docket 08-442; it was filed as document number 54.)
Both of those issues — jurisdiction over confinement conditions issues and the question of a detainee’s right, if any, to challenge those conditions — should be resolved, promptly, in the Paracha case, the Justice Department filing in the Circuit Court on Thursday said. Since the Circuit Court has already held a hearing on that case (in December 2005), it added, the three-judge panel should order some added briefing on issues still open or raised by the Boumediene ruling about challenges aimed at conditions at Guantanamo Bay.
It suggested that any new brief by detainees should be due within two weeks, following by a government response two weeks after that; and that, if new oral argument is ordered, that should be held in the Circuit Court’s first fall sitting.
