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First court action on new detainee dispute

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on Jan 4, 2006 at 1:26 pm
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U.S. District Judge Reggie B. Walton in Washington on Wednesday became the first federal judge to open a formal inquiry into the courts’ power to decide the existing cases challenging the detention of foreign nationals at Guantanamo Bay, Cuba. Judge Walton, acting in the case of Salim Gherebi (docket 04-1164), ordered lawyers to file briefs on whether the case should be dismissed under the new Detainee Treatment Act of 2005. The judge did not wait for the government to file a motion to dismiss, as it had told judges on Tuesday it would do next week. (This issue is discussed more fully in the post, just below. The blog thanks a number of attorneys for supplying copies of documents on this matter.)

Here is the text of Walton’s order:

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_________________________________________
)
SALIM GHEREBI, )
)
Petitioner, ))
v. ) Civil Action No: 04-1164 (RBW)
)
GEORGE WALKER BUSH, et al., ))
Respondents. )
_________________________________________ )
ORDER
On December 30, 2005, President Bush signed into law H.R. 2863, the Department of Defense, Emergency Supplemental Appropriations to Address Hurricanes in the Gulf of Mexico, and Pandemic Influenza Act of 2006 (“the Act”). Section 1005(e) of the Act, entitled Judicial Review of Detention of Enemy Combatants, provides that
(1) IN GENERAL- Section 2241 of title 28, United States Code, is amended by adding at the end the following:
`(e) Except as provided in section 1005 of the Detainee Treatment Act of 2005, no court, justice, or judge shall have jurisdiction to hear or consider–
`(1) an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba; or
`(2) any other action against the United States or its agents relating to any aspect of the detention by the Department of Defense of an alien at Guantanamo Bay, Cuba, who–
`(A) is currently in military custody; or
`(B) has been determined by the United States Court of Appeals for the
District of Columbia Circuit in accordance with the procedures set forth in section 1005(e) of the Detainee Treatment Act of 2005 to have been properly detained as an enemy combatant.’.

The Act raises serious questions concerning whether this Court retains jurisdiction to hear this case and all related matters. Accordingly, it is, this 4th day of January, 2006, hereby

ORDERED that the petitioner shall show cause by January 12, 2006, why this action should not be dismissed for lack of jurisdiction. It is further
ORDERED that the respondents shall file any response thereto by January 19, 2006, and the petitioner shall file a reply, if any, by January 24, 2006.
SO ORDERED.
REGGIE B. WALTON
United States District Judge

Meanwhile, Sen. Carl Levin, a Michigan Democrat and one of the two architects of the detainee litigation provisions in the Detainee Treatment Act (the “Graham-Levin Amendment”), disputed the Justice Department view that the Act requires dismissal of pending challenges by Guantanamo captives.

The text of a press release issued Wednesday by the senator follows.


Levin Statement on Administration Announcement It Will Seek Dismissal of Guantanamo Lawsuits

WASHINGTON – Sen. Carl Levin, D-Mich., issued the following statement in response to the Administration’s announcement that it will seek to dismiss existing lawsuits questioning the legality of the detention of hundreds of foreign nationals at Guantanamo Bay Cuba, based on their argument that the Graham-Levin amendment to this year’s defense authorization and appropriations acts applies retroactively to pending cases:

“The Administration is wrong,” Levin said. “Congress specifically considered and rejected language that would have applied the Graham-Levin amendment retroactively to pending cases.”
“Throughout the consideration of the Graham-Levin amendment, the White House repeatedly urged the inclusion of language that would have applied the amendment retroactively to pending cases. In each case, I objected to this language. As a result, no such language was included in the final version of the legislation. The Administration is now seeking to end-run the legislative process and achieve a result through the courts that it was unable to obtain in Congress. I hope and expect that the courts will reject this effort.”
Levin noted that at least three efforts were made to apply the amendment to pending cases:
· The original Graham amendment approved by the Senate contained language stating that the provision “shall apply to any [habeas] application or other action that is pending on or after the date of the enactment of this Act.” Levin objected to this language and, as a part of a Graham-Levin compromise, this language was removed from the bill.
· Before the bill passed the Senate, the White House made an effort to insert language stating that the provision “shall apply to any [habeas] application or other action that is pending on or after the date of the enactment of this Act, except that the Supreme Court of the United States shall have jurisdiction to determine the lawfulness of the removal, pursuant to such amendment, of its jurisdiction to hear any case in which certiorari has been granted as of such date”. Levin objected to this language and it was not included in the Senate-passed bill.
· During the conference, the House of Representatives proposed language stating that the provision “shall apply to any [habeas] application or other action that is pending on or after the date of enactment of this Act.” Levin objected to this language and it was not included in final version of the legislation.
Levin stated: “As I pointed out when we passed the bill, the provision says that it ‘shall take effect on the date of the enactment of this Act.’ The meaning of these words is clear: the provision is prospective in its application, and does not apply to pending cases. The Administration is just plain wrong when it says otherwise.”

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