New developments on detainee cases
on Apr 13, 2007 at 11:25 am
UPDATED 7:15 p.m. Friday
As of the close of business Friday, the D.C. Circuit Court had not issued its mandate in the detainee cases.
UPDATED Friday 11:30 a.m.
Lawyers for the Guantanamo Bay detainees asked the D.C. Circuit Court on Thursday night for a seven-day opening to go to the Supreme Court “for emergency relief” if the Circuit Court does not delay issuing its mandate in the detainees’ habeas cases. The filing, just now available, can be found here. Here is the key paragraph: “If the [Circuit] Court determines to rule on this motion at the present time, to issue the mandate, and not to preserve the status quo with respect to procedures, [the detainees] respectfully request that the Court, before issuing the mandate, allow [the detainees] seven calendar days within which to apply to the Supreme Court for emergency relief.” Such an application would go to Chief Justice John G. Roberts, Jr., at least as an initial matter; he is the Circuit Justice for D.C.
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The Bush Administration has urged the D.C. Circuit Court to act on Friday to put into effect its ruling in February wiping out scores of Guantanamo Bay detainees’ challenges to their captivity — an action that the detainees’ lawyers are resisting and that, if taken, very likely would lead them to make a quick return trip to the Supreme Court.
This dispute is only the latest round in a deepening controversy over what is to happen procedurally to the detainees’ cases now that the Supreme Court has declined — for the time being — to get involved. In technical terms, this particular dispute is about whether the Circuit Court will go ahead and formally issue the mandate, a simple order that would put into effect its Feb. 20 decision declaring that detainees have no constitutional rights and may not go on with habeas challenges in U.S. District Court. Friday is the day that the mandate ordinarily would come down, according to the government’s lawyers.
Here is how this latest skirmish developed:
On April 2, the Supreme Court denied review of the Circuit Court ruling.
A week later, on April 9, the detainees’ lawyers asked the Circuit Court to put off issuing the mandate until after they file new challenges in the Circuit Court under the Detainee Treatment Act of 2005 — for more limited review than would be available in habeas proceedings — and then go back to the Supreme Court. (This maneuver by detainees’ counsel was discussed in this blog at this post.)
Two days later, on Wednesday, the government filed its opposition to any further delay in putting the February decision into effect. (The government’s filing can be found here.) The filing brushed aside the views expressed by Supreme Court Justices on April 2 indicating that the detainees may yet be given a hearing before the Court on the very issues the Circuit Court decided in February.
Later today, attorneys for the detainees plan to file a reply to the government. (This will be linked here when available.) In that filing, it is likely that the prospect of another, faster return to the Supreme Court will be outlined. If the Circuit Court goes ahead with its mandate, the Supreme Court could be drawn into this round of the dispute as early as this weekend.
The detainees’ lawyers are counting heavily upon the fact that the Supreme Court simply denied review of the Circuit Court ruling, did not rule on the merits of that decision, and left the impression — particularly in a statement by Justices John Paul Stevens and Anthony M. Kennedy — that they would be monitoring the unfolding of the cases back in Circuit Court and ready to step in if necessary to prevent undue delays on other “injury” to the detainees’ legal interests.
The lawyers also want assurances that they can continue to have access to their detainee clients, and to information the government has used or may yet use to prolong their detention — something that can only come if the Circuit Court develops new procedures on access and does so soon.
The Justice Department, in seeking to fend off any further delay, wants the Circuit Court mandate issued on time so that scores of habeas cases still pending in U.S. District Court are wiped out, perhaps with no chance of revival even if the detainees’ win later on some of their legal points in the Detainee Treatment Act proceedings that are just getting started in the Circuit Court.
In its filing Wednesday, the Department dismissed the idea that the Circuit Court should wait in issuing its mandate until after the detainees go through the DTA process and then return to the Supreme Court. They have already had a chance to appeal to the Supreme Court, and that was denied, the Department’s filing noted. With the Supreme Court’s denial of review on April 2, it argued, detainees “have no basis to move for a stay of the mandate pending a petition for certiorari.”
Merely because the detainees disagree with what the Circuit Court decided, the Department said, is no reason to “decline to give that final judgment effect.” In a footnote, the filing dismissed the comments of Justices on April 2, saying relying upon those statements “fails to account for repeated statements of the Supreme Court that denials of certiorari and, concomitantly, opinions accompanying denials of certiorari, lack precedential value altogether.”
If the Circuit Court accepts the Department’s argument, and puts its ruling into effect Friday, the detainees’ lawyers would have the option of asking Chief Justice John G. Roberts, Jr. — and, perhaps, the full Court — to order the Circuit Court to postpone the mandate’s issuance. That would be an unusual, emergency motion, but even if it failed, it could keep the Justices on notice that the detainees’ legal situation will continue, perhaps repeatedly, to come back to them.
