Detainees seek action, government ponders rehearing plea
on Aug 15, 2007 at 2:38 pm
UPDATE 6:50 p.m.
The motion described in this post was one of several that lawyers for Guantanamo Bay detainees have been filing in recent days and weeks, seeking to persuade the D.C. Circuit Court to move more rapidly to compel the government to file the records that counsel wants the Court to review in examining the legality of military detention decisions. The Circuit Court has begun responding to those pleas, issuing several orders that require the government to submit a good deal more information about the basis for detention rulings than the government had felt a duty to supply. In several filings that have just become available, the Justice Department has told the Circuit Court that it is pondering a request for rehearing of the July 20 ruling (Bismullah v. Gates, 06-1197, and Parhat v. Gates, 06-1397) that broadened the government’s information-production obligation. One of these filings told the Court: “The government is currently assessing all of the practical ramifications of the Bismullah decision and considering whether or not to seek rehearing. Compilation and production of the ‘record,’ as defined in Bismullah, will impose significant burdens on multiple agencies of the United States government and raise important issues (which the government is currently evaluating) regarding the protection of national security information.” Under appeals court rules, the government has 45 days — until Sept. 13 — to file for rehearing.
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Protesting what they consider to be government foot-dragging, lawyers for seven Guantanamo Bay detainees on Wednesday urged the D.C. Circuit Court to speed up their cases and order the government to start filing tardy responses. The motion for expedition and for scheduling (download here) was filed in Parhat, et al., v. Gates, et al. (currently docketed at 06-1397, but soon to be split up into seven separate cases).
These seven detainees are among some 130 prisoners being held by the U.S. military who have filed challenges in the Circuit Court to military panel decisions ordering them held at Guantanamo as “enemy combatants.” The panel decisions are those made by “Combatant Status Review Tribunals,” set up by the Pentagon to lay down a basis for continued detention. The only review of the CSRTs’ work is by the D.C. Circuit, under the Detainee Treatment Act of 2005, rather than through traditional habeas challenges. The Circuit Court is moving ahead with the first of the DTA challenges, that of Paracha v. Gates (06-1038).
The new motion in the Parhat group of cases asked for a scheduling order somewhat like the one the court ordered last Friday for the Paracha case. The motion asked that the government file by Sept. 13 an index of the record the Circuit Court is to consider in weighing the validity of the combatant determinations — the same record index filing date in Paracha. But the motion’s suggestion for a briefing schedule was shorter than that laid down for the Paracha case. seeking to have briefing completed in the Parhat cases by Nov. 14 — three weeks earlier than the Dec, 7 completion date for the Paracha briefs.
The more expedited schedule appeared to reflect the frustration of lawyers with the government’s reaction to earlier Circuit Court orders or actions.
The Parhat group of cases have been prominent in the Circuit Court’s early work on DTA challenges, because they were heard and decided along with Bismullah v. Gates (06-1197), with the Circuit Court using those two cases to lay down some ground rules for the scores of other DTA cases that are now pending. The Bismullah/Parhat decision on July 20 significantly broadened the government’s obligation to provide information in an attempt to justify combatant decisions.
In the new motion, attorneys for Huzaifa Parhat and the six other detainees argued that the Pentagon was actually obliged to file a record of CSRT review in those seven cases last January, but has not yet done so. The lawyers said they had written to government lawyers at the end of July requesting that record and seeking added detailed on the CSRT proceedings. The request was repeated but, still, “no information has been provided in response” and the government has given no indication whether it has begun to compile a record, or if it will do so at all.
It is now time for the Circuit Court to press the government to begin filing what is overdue, the motion contended.
