Speedy action on torture case
on Dec 26, 2008 at 4:42 pm
NOTE: The following is an update of a post published on Dec. 17. The earlier post, found here, anticipated that events would develop more slowly than has actually occurred. Since the order discussed below was issued, the former detainees’ counsel has sought a 20-day extension of the briefing schedule, but that has been opposed by the Justice Department.
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The D.C. Circuit Court, moving with unexpected speed, has ordered new briefs to be filed in a major test case on the constitutional rights of detainees at Gautanamo Bay, Cuba.  The Circuit panel is following up on action taken by the Supreme Court in the case of Rasul, et al., v. Myers, et al. (Supreme Court docket 08-235, Circuit docket 06-5209). The schedule the three-judge panel set would have the new round of briefing completed just before the new Obama Administration takes office. That would mean the Bush Administration would have the last word on the government’s legal position — unless, of course, it chooses to consult with the transition team for President-elect Obama.
The Rasul case provides a fundamental test of whether the prisoners at Guantanamo have any constitutional or statutory rights other than the right to contest their continued detention — the only right they explicitly won in the Supreme Court’s Boumediene v. Bush decision last June.
On Dec. 15, the Supreme Court, citing its Boumediene ruling, issued an order requiring the Circuit Court to reconsider its earlier ruling in the Rasul case rejecting all of the claims of four Britons that they were tortured and suffered religious discrimination when they were being held at Guantanamo Bay. The Supreme Court has not yet put that order formally into effect, but it did notify the Circuit Court by letter the next day of the action.
Six days later, without waiting for the formal mandate of the Justices to reach it, and without waiting for lawyers involved to make any move, the Circuit Court panel acting on its own motion issued a call for new briefs. The order can be found here. The Justice Department and the Britons’ lawyers are to file initial briefs simultaneously by Jan. 6, and reply briefs ten days later — thus completing the briefing by Jan. 16, four days before inauguration day for Barack Obama.
Because the Supreme Court in Boumediene explicitly noted that it was not ruling on any “claims of unlawful conditions of treatment or confinement,” the Circuit Court presumably is not bound to change its earlier ruling.   In fact, the phrasing of the panel’s briefing order made it appear that it might well feel bound to rule just as it had before.
The Circuit order said new briefs should address “the effect, if any, of the [Supreme Court] holding in Boumediene v. Bush,…on this court’s opinion in Rasul v. Myers.” That much of the order tracks what the Supreme Court had said the Circuit panel was to do — that is, reconsider its prior ruling “in light of Boumediene v. Bush.”
But the Circuit order did not stop at that. It added that the new briefs should discuss Boumediene‘s impact “in light of Circuit precedent.”  When the same panel decided the Rasul case last Jan. 11, it rejected all of the Britons’ legal claims by relying heavily upon Circuit precedent. While parts of a Circuit precedent were overturned by the Supreme Court in Boumediene, a variety of other Circuit precedents were not disturbed by the Justices.
Indeed, among the precedents that seemed to be still standing is the part of the Circuit panel’s earlier ruling in the Boumediene case itself saying that “the Constitution does not confer rights on aliens without property or presence within the United States.” While the Supreme Court has now made clear that having “property or presence within the United States” is not necessary for one to have a constitutional right of habeas to challenge offshore detention, it has left open the question of whether such property or presence would be required for an alien outside the U.S. to have any other constitutional or statutory rights.
The Bush Administration, in a variety of court filings since the Boumediene decision was issued by the Justices, has taken the position that Boumediene was quite narrow in scope, limited solely to the habeas writ. By contrast, lawyers for detainees have repeatedly read the Boumediene decision expansively.
At this point, especially if there is no input into the government’s position in the new briefing by Barack Administration lawyers, there is no reason to expect the Bush Justice Department to take a different stance now. And, there is no reason to expect detainees’ counsel, either, to change course.
If the Rasul case had followed what would have been a normal timetable, new briefs almost certainly would not have been due until after President-elect Obama had assumed office.
Unless the Circuit panel moves very rapidly, once briefing is completed, to announce a new decision before the Barack Administration begins, there would be nothing to prevent the new administration from filing its own brief after it takes office, if it wanted to lay before the Circuit Court a different view of the issues at stake in Rasul v. Myers. It thus could, if it wished, offer support for some if not all of the detainees’ claims.
