Final push for rehearing for detainees
on Jun 22, 2007 at 3:07 pm
Lawyers for Guantanamo Bay detainees have made a final effort to persuade the Supreme Court to preserve their chance to pursue broad challenges to their detention at the military prison camp in Cuba, leveling a sharp new attack on the military panels that determine whether the detainees must remain confined as “enemy combatants.” The final pleas on the pending rehearing requests were filed Thursday and Friday. Included with the new filings at the Court is a statement given under oath, from inside the Pentagon combatant status regime, that describes defects and missteps and argues that higher officials have regularly sought to influence the process to assure that detainees stay at Guantanamo.
The Supreme Court is expected to act promptly, perhaps within the next week, on pleas by two groups of Guantanamo prisoners to reconsider the Court’s April 2 denial of review of their challenges to the court-stripping provisions of the Military Commissions Act of 2006. The cases are Boumediene v. Bush (06-1195) and Al Odah v. U.S. (06-1196). The Justice Department last Tuesday urged the Court to act quickly to deny the requests, so that lower courts may move ahead on pending cases in which detainees are seeking to overturn military findings that they were “enemy combatants” who cannot be released.
When the Supreme Court denied review in early April, two of the Justices suggested that the reason was to allow the D.C. Circuit Court a chance to be the first to act on the claims against the so-called “Combatant Status Review Tribunals”, or CSRTs.
All along, however, the detainees’ lawyers have been arguing that the limited review that Congress has provided of the CSRTs’ work under the Detainee Treatment Act of 2005 is far from being an adequate substitute for full-scale habeas challenges. Thus, they contend, Congress did not have the authority to wipe out habeas and leave them with much less in judicial review.
It was in advancing this last argument, as a reason for the Court to reconsider its denial of their appeals seeking to revive habeas, that the detainees put before the Court a signed declaration by a Newport Beach, Calif., lawyer who also is an Army Reserve lieutenant colonel. The attorney, Stephen Abraham, has sat on one CSRT, and served on active duty for almost six months in the Pentagon office that runs the CSRT operation — the Office for the Administrative Review of the Detention of Enemy Combatants.
Attorneys in the Al Odah case told the Court that “it is now clear that, not only is the [judicial] review provided by the DTA inadequate, but also the underlying CSRT process was an irremediable sham.” They said that Abraham has “come forward” to answer a defense of the CSRT process that a high-level official, retired Rear Adm. James M. McGarrah, had made in a recent government filing in the D.C. Circuit.
The Abraham declaration, detainees’ counsel said, “avers that, in every phase, the CSRT process was infected with command influence and an illusion….No [judicial] review under the DTA can cure such a sham process. No remand by a court for such a process can be an adequate substitute for independent review by a habeas court. Therefore, no exhaustion of the DTA remedy should be required before certiorari is granted in this case.”
The filing in the Al Odah case can be found here. The filing in the Boumediene case is here
The Abraham declaration also was filed with the D.C. Circuit Court, in reply to Admiral McGarrah’s earlier filing describing how the Pentagon gathers information for the CSRTs and laying out what information is, or is not, allowed to be put before those panels. The Circuit Court is considering what procedures it will use as it hears detainees’ cases against CSRT findings of combatant status.
The sworn statement by the reserve Army officer said that those who worked in the Pentagon operation of preparing cases before CSRTs were often junior officers with little training or experience in dealing with intelligence information, and depended very heavily upon “case writers” to actually put together allegations against detainees. Those case writers and the military officer actually assigned to present a case to a CSRT “did not have access to numerous information sources generally available within the intelligence community,” Abraham said. And the case writers often relied upon a “deficient” database of detainee information, he added.
Abraham said that he had served as a go-between with U.S. intelligence agencies that were supplying information about detainees. He found that his access to information those agencies had assembled was limited, and lacked assurances that information favorable to a detainee would actually reach a CSRT. “It was not possible for me to certify or validate the non-existence of exculpatory evidence as related to any individual undergoing the CSRT process,” he declared.
Although those working in the Pentagon operation “often received large amounts of information,” the reserve officer said, “they often had no context for determining whether the information was relevant or probative and no basis for determining what additional information would be necessary to establish a basis for determining the reasonableness of any matter to be offered to the CSRT board members.”
He describes one occasion when he personally was assigned to a CSRT panel reviewing information about a particular detainee. He and two others on the panel “found the information presented to lack substance,” he recalled. Because of what they perceived as “the paucity and weakness of the information,” he said, his CSRT panel decided there was no basis for finding that detainee to be an “enemy combatant.” But, Admiral McGarrah and his deputy “immediately questioned the validity of our findings,” Abraham said. The panel was told to reopen the hearing for further information, but, in the end, the panel did not change its recommendation.
The response in his experience with top officials, Abraham said, “was consistent with the few other instances in which a finding of ‘Not an Enemy Combatant’ (NEC) had been reached by CSRT boards. In each of the meetings that I attended with [the office’s] leadership following a finding of NEC, the focus of inquiry on the part of the leadership was ‘what went wrong.'” He concluded: “I was not assigned to anther CSRT panel.”
In the Boumediene case, the reply to the Supreme Court on Thursday sought to counter the Justice Department argument on Tuesday that only confusion will prevail if the Supreme Court does not promptly reject the rehearing petitions and let the D.C. Circuit Court move forward. That filing used Department documents that have been filed in the D.C. Circuit Court as part of the DTA process to make the argument that the DTA process is no substitute for habeas.
