One route of challenge closed to detainees
on Jan 9, 2009 at 10:39 am
The D.C. Circuit Court on Friday closed one civilian court channel that Guantanamo Bay detainees had used to challenge their confinement, shutting down perhaps 175 pending cases in that court. The three judges on the panel were unanimous in accepting the government’s argument that the review process created under the Detainee Treatment Act of 2005 has been scuttled, even though that law is still on the books.
 The ruling, however, may not be limited in its impact to that process, because the panel’s reasoning could narrow the rights of detainees in the remaining channel for challenges — the 200 or so habeas cases working their way through U.S. District Courts. The Circuit Court opinion, on rehearing the case of Bismullah, et al., v. Gates (06-1197), can be found here.
The ruling follows a two-year effort by the Bush Administration, first to narrow the authority of the Circuit Court to hear detainee challenges, and, then, when that was thwarted, to bring that entire layer of review to a halt. It has now prevailed on that ultimate goal and, as a result, detainees now may proceed only in District Courts, using a constitutional right that the Supreme Court recognized for them last June in Boumediene v. Bush — a right to pursue habeas remedies.
Circuit Judge Douglas H. Ginsburg’s opinion for the panel made clear that the court felt obliged to nullify the DTA cases as a consequence of the Boumediene decision. In Boumediene, the Justices struck down as unconstitutional a part of the DTA law that had stripped the federal courts of any jurisdiction to hear Guantanamo habeas claims.
When that court-stripping provision fell in the Supreme Court, the Circuit Court concluded, so did all of the DTA’s review process — the main part of the 2005 Act. That process was created by Congress to allow detainees to test in the Circuit Court the “enemy combatant” rulings made by the Pentagon’s “Combatant Status Review Tribunals” (or, CSRTs). An “enemy combatant” finding is necessary to keep a prisoner at Guantanamo.
“In this case,” Ginsburg wrote, “there can be no doubt: Both the text of the relevant provisions and the enactment of successive jurisdiction-stripping provisions demonstrate clearly that the Congress would not in the DTA have given this court jurisdiction to review CSRT determinations had it known its attempt to remove the courts’ jurisdiction over habeas petitions would fail.”
In Boumediene, the Supreme Court had said that the separate DTA review scheme “remains intact.” But the Circuit Court said the Justices did not have before them the issue of whether the two modes of judicial review — DTA review by the Circuit Court, and habeas review in District Courts – could co-exist. The Circuit Court said the two parts of the 2005 law — creation of DTA review and denial of habeas review — could not be separated in Congress’s mind. In other words, Congress’s intent could only be satisfied if, after restoration of habeas, DTA review would end. The Supreme Court, it said, “did not address the issue of severability and thereby left it to this court to resolve in the first instance in light of” Boumediene.
Congress, Ginsburg said, wanted the DTA process to be the sole — and a limited — means for detainees to contest their ongoing confinement. The lawmakers “understood review under DTA to be a substitute for and not a supplement to habeas corpus and hence the exclusive means by which a detainee could contest the legality of his detention in a court….Therefore, DTA review, by opening an avenue of relief alongside the writ of habeas corpus, can no longer function in a manner consistent with the intent of Congress.”
So far, the Circuit Court has issued only one final ruling in a DTA case — the ruling last year in Parhat v. Gates, finding that the Pentagon had not justified the continued confinement of Huzaifa Parhat, a Guantanamo prisoner. Despite that ruling, Parhat has not yet been released, because his fate is tied up in a pending Circuit Court case involving other prisoners as well. Whether the ruling in his favor is still binding on the government is not clear; the Circuit Court panel on Friday mentioned it in a footnote, and hinted that, despite the loss of DTA jurisdiction, that ruling might still remain in force. The footnote quoted a scholarly treatise suggesting that it probably would survive.
The Bismullah case that finally resulted in victory for the government has bedeviled its lawyers and policymakers for most of the past two years. After Congress created the DTA process, a panel of the Circuit Court — in two rulings authored also by Judge Ginsburg — expanded broadly the amount of kind of information that the Pentagon and intelligence agencies would have to turn over to the Circuit Court as it reviewed the validity of detention rulings by the Pentagon CSRTs. The Justice Department produced sworn statements by all of the top echelon of intelligence officials contending that this would pose grave risks of exposing national security secrets, and would divert vital officials from their wartime tasks.
So, when the Circuit Court refused to reconsider en banc the panel’s Bismullah decisions, the Department asked the Supreme Court to overturn it. The Justices, instead, returned the case to the Circuit Court to reconsider in the wake of the Boumediene decision. The Ginsburg panel then simply reinstated its earlier rulings, over the objection of the government. The government then mounted its final challenge, contending that DTA was at an end. It now has won on that point, although detainees’ lawyers would be free to try to get the full Circuit Court to consider the issue, or take it to the Supreme Court.
Friday’s ruling was confined to the fate of the DTA process and did not decide anything finally about the scope of the continuing habeas proceedings. Two facets of the decision, however, appear likely to buttress the government’s ongoing efforts to pare down the habeas rights of detainees, and thus to limit the remedies that detainees’ counsel may seek.
First, the Circuit Court laid heavy stress on Congress’ desire, in court-stripping provisions enacted in 2005 and 2006, to go as far as it could to curb the chances that detainees would have to contest their cases in U.S. courts.
The Justice Department has been making exactly that argument in District Courts and in other cases now pending in the Circuit Court as it sought to prevent judges from examining conditions of confinement at Guantanamo, or movement of detainees out of Guantanamo. Congress, it has argued, did not want the courts second-guessing the entire operation of the Bush Administration’s detention program, so it was interested in sharply curtailing any form of civilian judicial review of detainees’ claims. That theme runs through the pages of Friday’s opinion.
Second, the Circuit Court decision turns on its interpretation of what Congress would have wanted, in enacting detainee legislation in 2005 and 2006, if it had known that some parts of what it was adopting would be nullified in court.  That is what is technically called the “severability” issue — in other words, if Congress could not have all of what it passed, would it want everything scuttled, or would it want some parts severed and allowed to remain?
The Justice Department, while arguing in the DTA context that the creation of the DTA process and the denial of habeas could not be severed so both had to fall when one did, has taken just the opposite view regarding the scope of habeas rights that remain in the wake of the Supreme Court’s Boumediene decision.
Congress, the Department has noted, passed two court-stripping provisions in 2006, as part of the Military Commissions Act. One provision sought to bar detainees from even going to court with a habeas petition; the other sought to bar detainees from challenging any aspect of their confinement, including conditions at Guantanamo, transfers, or any other aspect of how the military deals with its prisoners. The Department has gone on to argue that the Supreme Court struck down the first part only. If Congress had known that that would happen, the government then said, it would have wanted to keep intact the second provision to ensure that habeas review did not go beyond testing the basis of detention itself to second-guess everything that happens at Guantanamo, or at other detention sites.
The Circuit Court is considering that very argument in cases now testing whether judges may require the government to notify detainees’ lawyers before transfers out of Guantanamo can be carried out, and whether a judge can order the transfer of a detainee to live within the U.S. Friday’s opinion contained language that suggested the government could be more optimistic about its chances in those cases, as well as in its continuing attempts in District Court to persuade judges to limit their review of habeas claims.
