Government considers re-doing detainee cases
on Oct 12, 2007 at 2:30 pm
The Justice Department notified the D.C. Circuit Court on Friday that it is considering starting all over with at least some of the military panels that weigh whether Guantanamo Bay detainees should remain confined. Those panels are called “Combatant Status Review Tribunals;” they serve a dual function: deciding who among the hundreds of detainees at Guantanamo must stay there, and who is to face war crimes charges before military trial commissions.
The government has held 558 proceedings before CSRTs. Only somewhere around 350 detainees remain at Guantanamo, however, so the re-opening of the panels would be more limited but still might result in a major slowdown in the Pentagon’s handling of detainee affairs.
The scope of the detainees’ legal right to go to court to challenge their detentions is under review this Term by the Supreme Court. If there is a significant reopening of CSRT proceedings, detainees’ lawyers are expected to argue to the Justices that this is an additional indication that the entire system of processing detainees’ is flawed.
In a motion filed Friday in Chaman v. Gates (07-1101), an appeal challenging a CSRT ruling on continued detention, the Justice Department for the first time indicated that it may opt to convene a new CSRT in this and other cases, and needs more time to decide whether it will, in fact, do so. That alternative was suggested by the Circuit Court on Oct. 3, if the government finds it is having difficulty re-assembling the information the court has said it must file as it seeks to have CSRT findings upheld by the Circuit Court under the Detainee Treatment Act.  The new motion for a stay can be found here.
The Circuit Court’s suggestion about starting over came as a three-judge panel refused to reconsider a ruling July 20 that requires the Pentagon to come up with considerably more information about detainees than it had planned to offer in court when it defended CSRT findings. The July 20 decision, the government has told the Court repeatedly, imposes an onerous burden on government officials as they respond to some 150 detainees’ appeals in DTA cases. “We believe that the….decision adopts an overbroad definition of the record on review under the Detainee Treatment Act that could result in great harm to the national security,” it argued in its Chaman motion.
The July 20 decision came in the combined cases of Bismullah v. Gates (06-1197) and Parhat v. Gates (06-1397).
The government still has pending a petition for rehearing en banc — that is, by the full ten-judge Circuit Court.  While that request remains pending, the Circuit Court in other DTA cases has been delaying the government’s duty to supply the broader record of information. In those other cases, the Circuit Court said the government would have to file that data two weeks after the Court acts on the en banc petition. It also indicated, in some of those cases, that that deadline probably would not be extended.
Saying it could not meet that deadline, the Justice Department said Friday that it would impose “an impossible burden on the government.” This time, though, it added another reason for its need for delay: the time it would take to decide whether to employ the alternative of convening new CSRTs in the Chaman and other cases.
If the Court should deny en banc rehearing, the motion suggested, the Court should not reimpose the 14-day filing deadline, but leave the date open. The new CSRT alternative, it said, “requires a detailed an extended analysis of the cases that cannot be reasonably accomplished within 14 days…”
Meanwhile, military officials at Guantanamo Bay have been telling news reporters there that the Pentagon is actively considering summoning new proceedings before CSRTs, to respond to criticism that the first round in those panels may have been done with inadequate or dated information.
One news account, for example, quoted an officer involved in CSRT matters that authorities have been looking for new or previously overlooked information that may warrant new hearings. That officer was quoted directly as saying that the new review was “an acknowledgment that if there is new evidence or a new thing to take into bearing, in the spirit of being an open and fair process, we have to take that into consideration.”
It is unclear whether the Pentagon will launch reopened CSRT proceedings on a wide scale, until after it hears from the Circuit Court on the rehearing plea. Justice Department lawyers have indicated that, if rehearing is denied, they may go to the Supreme Court for relief.
