Government: Don’t rush on detainee cases
on Mar 21, 2007 at 6:31 pm
The Bush Administration urged the Supreme Court on Wednesday evening to pass up review at this time of legal claims of detainees at the military prison camp at Guantanamo Bay, Cuba, urging the Justices to let the detainees attempt their challenges in a federal appeals court first rather than in a habeas proceeding in a trial court. But, even if the Court agrees soon to hear the detainees’ claims, it should wait until the next Term starting on Oct. 1 to consider and decide them, Solicitor General Paul D. Clement argued. Perhaps a hearing might be held even in September, before the Term opens, he suggested.
The government responded quickly to the detainee appeals filed March 5 in Boumediene v. Bush (06-1195) and Al Odah v. U.S. (06-1196), but only to get the case before the Justices for an initial look at whether to grant review at all. Its combined response to the two appeals recommended against any review, and none at least until Fall.
Should the Court disagree on both points, and move to decide the cases this Term, Clement recommended a somewhat more relaxed schedule of merits briefing than the detainees’ lawyers had suggested. The detainees’ merits brief should be due on April 16 — as the detainees’ counsel requested, Clement agreed, but suggested that the government should have until May 3, not April 27, to file its brief. The detainees would then reply on May 10, and the Court would hold an oral argument on May 21 (instead of the May 7 date suggested by the detainees’ counsel).
This alternative schedule, the Solicitor General said, “allows a more reasonable interval for both the Court and the advocates between the end of the April argument calendar and any oral argument in these cases.” The Court, he noted, “already has an unusually large complement of cases scheduled for oral argument in late April. Adding a May argument involving multiple petitioners and multiple issues of potential complexity will only add to the Court’s burdens at a particularly busy juncture.” Given that the detainees could instead go promptly to the D.C. Circuit Court to bring challenges, “there is no reason [for the Justices and counsel] to shoulder” the added burdens unnecessarily “rather than calendar the case in the ordinary course.”
Clement laid out the government’s objection to a fast-track schedule in an eight-page memo, and responded jointly to the two new appeals in a 30-page brief in opposition.
In opposing review of the existing appeals at any time, now or later, the Solicitor General said that the Court should “respect the balance that Congress” struck in wiping out federal habeas jurisdiction in all detainee cases and setting up an alternative review system at the D.C. Circuit Court. This review process — which the detainees contend is significantly more limited than habeas proceedings would permit — should be allowed to “run its course” before the Supreme Court gets involved, the brief contended. That alternative process was set up by the Detainee Treatment Act in 2005, and that was followed up with the habeas jurisdiction-stripping provisions of the Military Commissions Act of 2006. The DTA process is Congress’ preferred method of judicial review of the military status review system that the Pentagon set up to judge whether detainees should continue to be held at Guantanamo.
Noting the detainees’ objections to both the status review tribunals and the Circuit Court review process, the Solicitor General said those arguments have not yet been heard by the D.C. Circuit. “Conventional principles against avoiding important constitutional questions before it is necessary to decide them counsel strongly against jumping to determine, at this early juncture, the adequacy of DTA review before the D.C. Circuit has even had an opportunity to determine what that review entails in a concrete setting and issued a decision adverse to an enemy combatant,” the brief asserted.
The government noted that the D.C. Circuit has ordered expedited briefing and argument in already pending cases “to consider the nature of review under the DTA and issues relating to the entry of a proposed protective order addressing, among other things, counsel access to classified information.” Oral argument on those cases, it said, is set for May 15 at the Circuit Court.
Defending the system for review by the D.C. Circuit in the DTA process, the government brief said that Congress has given all “enemy combatants” at Guantanamo “an unprecedented degree of access to our courts in wartime. No other captured enemy combatants in the history of this country, or any other, have enjoyed such privileges.”
The Court is to consider the detainees’ motions to expedite their petitions at its Conference this Friday, according to the Court’s electronic docket. It is not clear whether the Court will be considering only the motion to expedite the question of granting or denying review, or whether it also will ponder the detainees’ further suggestion — now opposed by the government — to expedite the briefing and argument schedule should review be granted this Term.
The detainees have urged the Court to put the petitions themselves on the Conference agenda for next Friday, May 30. So far, there has been no reaction by the Court to that suggestion, but the Court could agree to do that, now that the government opposition brief is on file.
The government brief, in arguing that the Court should simply deny the present appeals, defended as correct the D.C. Circuit’s 2-1 ruling in February. In that decision, the Circuit Court found that Congress had stripped all federal courts of jurisdiction to hear any habeas plea by a war-on-terrorism detainee, held at Guantanamo or elsewhere by the U.S. military. The Circuit Court also ruled that this court-stripping provision was not an unconstitutional suspension of the writ of habeas corpus.
The Solicitor General argued, as the Circuit Court had found, that foreign nationals being held outside U.S. sovereign territory are not protected by the Constitution’s Suspension Clause. “In any event,” Clement added, “even in contexts in which the Suspension Clause is fully applicable, this Court has held that Congress may withdraw habeas jurisdiction if it provides an adequate alternative remedy” — as the government said Congress had done with the DTA proceedings.
