First new ruling set on Guantanamo habeas
on Nov 14, 2008 at 5:29 pm
The first ruling by a federal judge on a constitutional challenge by Guantanamo Bay detainees to continued confinement — challenges permitted by the Supreme Court last June — will come Thursday morning, U.S. District Judge Richard J. Leon indicated in an order Friday. The docket entry showed that Leon will announce an “oral opinion” that day at 10 a.m. in his courtroom in downtown Washington.
Judge Leon has been holding mostly closed-door sessions for the past two weeks, testing the Pentagon’s legal and factual basis for continuing to treat the six detainees in the case as “enemy combatants.”
The ruling will come, by coincidence, in the same case as one of those decided in a combined opinion by the Justices on June 12 — Boumediene, et al., v. Bush, et al. That case involves six individuals who were captured in Bosnia and turned over to U.S. officials. They have been at Guantanamo Bay for more than six years. (The District Court docket number is 04-1166.)
As matters have turned out, the Boumediene case — which Judge Leon originally decided in 2005 — returned to his Court following the Supreme Court decision last Term, and he has been moving those cases along more rapidly than any of the other judges in District Court in Washington, where more than 200 such cases are pending.
The Guantanamo habeas cases filed in the Washington federal court originally were under the federal habeas statute. But Congress stripped the federal courts of their authority to decide those cases in laws passed in 2005 and 2006. The Supreme Court, however, ruled that those laws unconstitutionally deprived the detainees of a right of habeas, guaranteed by the Constitution’s so-called Suspension Clause.
With the Boumediene ruling in hand, lawyers for the Guantanamo prisoners returned to District Court to press this new constitutional right. Some of them are separately challenging their confinement in the D.C. Circuit Court, under an alternative procedure enacted by Congress in the Detainee Treatment Act of 2005.
Almost simultaneously with Judge Leon’s opinion hearing on Thursday, a three-judge panel of the D.C. Circuit will be holding a hearing on the Justice Department’s efforts to shut down all 190 of the DTA cases, on the theory that Congress did not intend to have two separate judicial forums for detainees’s challenges. The Circuit Court hearing is at 9:30 a.m. Thursday, with the detainee case — Bismullah v. Gates (06-1197) — to follow an unrelated case starting at 9:30. The earlier case is scheduled for an hour and 10 minutes, indicating that Bismullah would probably not begin before 10:45 a.m.
