The deepening complexity of the detainee cases
on Aug 9, 2007 at 5:48 pm
UPDATE Friday a.m.
The Supreme Court’s decision on June 29 to hear next Term two cases on the rights of Guantanamo Bay detainees has led to an array of responses in the lower courts as they gauge the impact of the Court’s plans on other cases before them. The sometimes conflicting and shifting reactions are themselves producing new tests for the Justices on how they will manage their detainee docket. This is well illustrated by the case of Belbacha v. Bush. In their third filing of the week in the Court, attorneys for the Algerian national on Thursday evening filed a petition (download here) seeking review of the merits of his challenge before the D.C. Circuit Court rules on it. The questions presented manifest the legal complexity now confronting the Court and counsel:
“1. Whether granting certiorari before judgment is appropriate when the Court of Appeals has already concluded that it lacks jurisdiction to consider the case.
“2. Whether the Court should resolve a conflict among he lower courts concerning the proper standard for granting a temporary restraining order.
“3. Whether the decision of an earlier panel of a Circuit Court that it lacks jurisdiction to consider a matter bars a later panel of that court from granting preliminary relief to preserve the status quo pending this Court’s resolution of the jurisdictional issue decided by the earlier panel.”
FURTHER UPDATE Friday: The petition for a writ of habeas corpus, shown in the post below as docket 07-5774, has been withdrawn as a pauper petition and will be refiled as a paid petition; the docket number will be posted when available.
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Lawyers for an Algerian national who is fighting transfer out of Guantanamo Bay
Attorneys for an Algerian national who is seeking to block his transfer from Guantanamo Bay, Cuba, military prison to his home country on Thursday asked the Supreme Court to stop any move until after it rules on detainees’ rights at its next Term. This was the second of three anticipated filings to try to maintain the status quo for Ahmed Belbacha, who fears torture and abuse if he is sent to Algeria by U.S. officials who are seeking to reduce the number of prisoners held at Guantanamo Bay.
The petition for an original writ of habeas corpus, docketed as 07-5774, can be found here. Belbacha also has pending a request for emergency relief from Chief Justice John G. Roberts, Jr. in Belbacha v. Bush (docket 07A98). The U.S. Solicitor General, asked by the Chief Justice to respond, opposed any relief in a filing Wednesday. Belbacha’s lawyers also are planning to file a petition to review the merits of his habeas challenge, prior to any ruling on that question by the D.C. Circuit Court in a case pending there.
In another development in the Court on detainee matters, government officials who review detainee documents for security purposes on Wednesday released for public filing a petition for an original writ of habeas corpus filed by lawyers for Abdul Hamid Al-Ghizzawi (download here). That document actually was filed at the Court on July 26, but has just received clearance. A post on this blog discussing the petition can be found here.
Outside the Supreme Court, the Pentagon announced that military panels have completed review of the status of 14 so-called “high value” detainees at Guantanamo Bay, and have ruled that each of them is an “enemy combatant” — thus permitting the military to continue their confinement. The Pentagon news release announcing the findings of “Combatant Status Review Tribunals” can be found here. The release includes a link to transcripts of those proceedings.
Those 14 are called “high value” detainees by government officials because of allegations of their significant importance in alleged terrorism activities. Among the 14 is Khalid Sheikh Mohammed, who has claimed that he was the “mastermind” of the terrorist attacks on the U.S. on Sept. 11, 2001. President Bush announced on Sept. 6 last year that the 14 had been transferred to Guantanamo Bay from undisclosed sites overseas where they were being held. “These are dangerous men with unparalleled knowledge about terrorist networks and their plans for new attacks.”
The President’s announcement came amid efforts by the Bush Administration to persuade Congress to pass the new Military Commissions Act of 2006, to set up new war crimes tribunals and to strip the federal courts of jurisdiction to hear detainees’ habeas challenges in the wake of the Supreme Court’s ruling in Hamdan v. Rumsfeld, striking down a tribunal system set up under Presidential order and rebuffing an earlier attempt to scuttle habeas challenges by detainees.
