Scope of detainee rights review debated
on Aug 8, 2007 at 6:35 pm
Even if the Supreme Court were to restore federal courts’ authority to hear Guantanamo Bay detainees’ challenge to their prolonged imprisonment, the Justice Department argued on Wednesday, that would not revive the power of the Supreme Court or any lower court to pass upon transfers of prisoners away from Guantanamo to foreign countries. The Department made the argument in opposing any temporary order that would keep the State Department from releasing an Algerian from Guantanamo — reportedly to send him to his home country, where he fears torture. (The opposition brief can be found here.)
The Court will be reviewing next Term whether Congress acted lawfully when it moved last fall to strip the federal courts of all habeas review in detainee cases, in the Military Commissions Act of 2006. That is the central issue in Boumediene v. Bush (06-1195) and Al Odah v. U.S. (06-1196), granted review on June 29.
In the Justice Department filing Wednesday, in the Algerian’s case (Belbacha v. Bush, 07A98), it contended that the Boumediene/Al Odah review will be strictly confined to only one part of the MCA, dealing with challenges to detention. That would not involve a separate part of the MCA barring courts from hearing any case objecting to transfer out of Guantanamo, it contended. Moreover, it argued, even without the MCA, constitutional separation of powers principles bar the courts from taking any action that would intrude on the Executive Branch’s ability to negotiate with other countries over detainees’ fate. Even the Supreme Court, it added, does not have “inherent power” to judge such diplomatic endeavors.
At this point, the only plea from Ahmed Belbacha’s counsel before Chief Justice John G. Roberts, Jr., is a motion for an emergency order to bar his transfer to Algeria. His attorneys, however, are also planning to file a petition for review of his case on the merits, seeking Supreme Court review before the D.C. Circuit Court rules on that case. In denying any emergency relief against the transfer, the Circuit Court set the Belbacha case for expedited review (Circuit docket 07-5258)
Meanwhile, in papers filed on Tuesday, lawyers for another Guantanamo Bay detainee asked the Supreme Court to expand its coming review of detainee rights beyond those of foreign nationals, to include an examination of the legal rights of those prisoners who have citizenship elsewhere but are eligible to be in the U.S. as permanent resident aliens. That petition for review involves a Pakistani national who has a U.S.-issued green card, and plans to return to live in the U.S. — Saifullah Paracha. The new Paracha petition can be found here.
Here is the question raised in the new petition, Paracha v. Bush (07-153): “Whether the regime established by Congress in the Military Commissions Act of 2006…, as applied to a lawful permanent resident detained in Guantanamo as an enemy combatant, violates the Suspension Clause and the Due Process Clause.”
As of now, the Supreme Court’s review involves only foreign nationals at Guantanamo who have had no prior ties to the U.S., and were taken to the military prison at the U.S. Naval base in Cuba after being captured overseas.
“A lawful permanent resident enjoys the same constitutional rights as a citizen,” Paracha’s lawyers argued in their petition. It would be unconstitutional, they contended, to apply the MCA’s court-stripping provisions to a citizen, so “the fact that the detainee is a lawful permanent resident should lead to no different conclusion.” That would violate the Constitution’s clause against suspending habeas “without providing an adequate substitute,” and the Constitution’s due process clause by denying access to a neutral decisionmaker to judge the detention, the petition said.
Paracha also has a case pending in the D.C. Circuit challenging his designation as an “enemy combatant.” That case (Circuit docket 06-1038) is the first by a detainee to pursue court review of the merits of a detention decision by the military under the Detainee Treatment Act of 2005.
