Showdown over DTA’s future
on Nov 5, 2008 at 5:17 pm
The D.C. Circuit Court, moving to resolve a sharp dispute over two simultaneous levels of civilian court review of wartime military detentions, on Wednesday set up a showdown hearing for Nov. 20 on whether to scuttle the entire process set up by Congress under the Detainee Treatment Act of 2005. Acting one day after one Circuit Court panel had given new impetus to a government effort to end DTA review, another panel ordered a hearing on whether that Court has lost its DTA jurisdiction to review “enemy combatant” designations by Pentagon tribunals.
The DTA process, passed as part of moves in Congress to curb the legal right of Guantanamo Bay detainees to challenge their confinement, gave the Circuit Court in Washington the exclusive assignment of reviewing decisions by military Combatant Status Review Tribunals to designate Guantanamo captives as “enemy combatants.” That status is necessary before a detainee may continue to be held prisoner.
The Justice Department has contended in court that, once the Supreme Court last June (in Boumediene v. Bush) had restored the detainees’ rights to challenge their detention through habeas cases in District Courts, the alternative DTA process in the Circuit Court was dead because Congress wanted one, not two, forums open to detainees.
Initially, the Department simply wanted the DTA cases put on hold while the prisoners sought habeas relief. But, last month, it escalated its challenge, and argued that the Supreme Court’s decision meant not only that habeas courts were reopened, but that the Circuit Court had lost jurisdiction over the DTA system of review.
The stronger challenge was made in the form of a petition for panel rehearing or rehearing en banc in the case of Bismullah v. Gates (Circuit docket 06-1197) — a case that produced a ruling establishing broad contours for Circuit Court review of combatant designations. The panel that had decided the Bismullah ruling asked detainees’ counsel to respond; the prisoners’ lawyers then opposed reconsideration, arguing that neither Congress nor the Supreme Court had abandoned DTA, and the Circuit Court could not do so.
Then, on Wednesday, that panel agreed to a limited rehearing, saying it would assemble on Nov. 20 to hear counsel on “the issue whether this court retains subject matter jurisdiction over petitions filed pursuant to the Detainee Treatment Act after the decision in Boumediene v. Bush…” That order can be found here.
In a separate order, the en banc Circuit Court (now down from ten judges to nine after one of its members had taken senior status this month) deferred any action on the government’s en banc hearing request pending the panel’s decision on jurisdiction. That order is here.
The Bismullah case panel that will examine DTA’s future includes Circuit Judges Douglas H. Ginsburg, Karen LeCraft Henderson and Judith W. Rogers. While they did not indicate how those three had voted, it was clear from the order that the action was prompted by a decision on Tuesday by another panel — made up of Judge Henderson and two others, Senior Circuit Judge A. Raymond Randolph and Circuit Judge Janice Rogers Brown. That other panel had questioned, in Basardh v. Gates (07-1192), whether the DTA process was dead because of the jurisdictional argument. While saying it had raised that issue on its own, the Basardh panel also noted that the Justice Department had raised it in the Bismullah case. (A post appearing on this blog Tuesday discussed the Basardh ruling; it can be read here.)
The controversy over whether the Circuit Court lost its DTA powers last June 12 with the Justices’ Boumediene ruling has also added a layer of complication to another major detainees’ case — the one involving 17 Chinese Muslim Uighurs now at Guantanamo, who are seeking to be released into the U.S. because the Pentagon no longer considers them to be “enemy combatants.”
Part of those 17 prisoners’ argument for release is that the D.C. Circuit, in a ruling June 30, had ordered the release or transfer of one of the 17 — Huzaifa Parhat — and so the panel considering the plea to release all 17 into the U.S. had to act consistently with that earlier decision. (The June 30 ruling came in the case Parhat v. Gates, 06-1397 — the Circuit Court’s first, and so far only, final ruling in a DTA case.)
But a potential problem arose over the legal impact of the Parhat decision because it is a DTA case and the Basardh decision seemed to mean that the Parhat panel lacked jurisdiction even to consider that case in the wake of the Supreme Court’s opinion in Boumediene.
The new Uighurs case pending in the Circuit Court is Kiyemba v. Bush (08-5424). Judges Henderson and Randolph — two of the judges on the Basardh panel in Tuesday’s decision raising the DTA jurisdictional question  — are on the Kiyemba panel, along with Judge Rogers.
The Kiyemba panel is to hold a hearing Nov. 24 — four days after the hearing by the Bismullah panel on the jurisdictional issue. It is unclear whether the Bismullah panel planned explicitly to get its hearing in ahead of the Kiyemba case’s hearing, although the timing likely was not accidental.
No new briefs are to be filed on the DTA jurisdictional issue. Each side was allotted 15 minutes for the Nov. 20 hearing, with one attorney to argue for each.
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NOTE TO READERS: This array of cases and issues may be confusing. Here is a summary of the cases and how they fit together:
 Bismullah — the underlying case on DTA procedures. Panel rehearing, limited to the Court’s DTA jurisdiction, was ordered, based on the Basardh decision. Argument set Nov. 20. (En banc rehearing question in Bismullah postponed.)
Basardh — the ruling questioning Circuit Court power to decide DTA cases. It gave rise to the rehearing order in Bismullah. It was based on an intepretation of the Supreme Court’s Boumediene decision.
Boumediene — June 12 Supreme Court ruling restoring habeas rights for detainees.
Kiyemba — the test of judges’ power to release the Uighur detainees into the U.S. It is scheduled for argument Nov. 24. One issue is whether the Court must follow its June ruling in Parhat.
Parhat — the first DTA ruling on the merits, ordering release or transfer of one Uighur. The Basardh ruling raises a question about the Court’s jurisdiction to issue the Parhat decision.
