The system of court review that Congress set up for examining continued detention of captives at Guantanamo Bay, Cuba, has no chance of working, especially in view of “the fractured nature” of the assigned court — the D.C. Circuit, lawyers for a group of detainees told the Supreme Court Tuesday in a newly filed brief.  The new document speaks for prisoners in both of the currently pending test cases on detainees’ legal rights: those in Boumediene v. Bush, 06-1195, and some of those involved in Al Odah v. U.S. (06-1196), both argued Dec. 5 and now awaiting decision.

A central issue in those cases is whether, in moving to cast aside broad habeas review for the detainees, Congress provided an adequate substitute in enacting the Detainee Treatment Act of 2005.  The supplemental brief provides an even harsher critique of the DTA process than earlier merits briefs had done — partly because the Circuit Court, where the DTA review is to play out, has now been discovered to be split 5-5 on even the most basic questions over procedure and the scope of judicial review.

“The fractured nature of the D.C. Circuit’s recent action does not bode well for the future of DTA proceedings,” the new brief argued.  “There is ample reason to believe that the D.C. Circuit will continue to engage in divided, incremental decisionmaking on threshold procedural issues on which Congress has provided no guidance, thus making DTA review far less speedy than the centuries-old remedy of habeas…DTA petitions will surely languish for years before the court of appeals reaches the merits in even a single case, let alone in the more than 180 other DTA cases that are currently pending.”

This was the second supplemental brief detainees’ counsel had filed with the Justices, in the wake of the Circuit Court’s refusal on Feb. 1 by an evenly divided vote to reconsider a July 20 three-judge panel decision laying down the basic ground rules for the court’s review of military detention rulings (rulings made by the Pentagon’s so-called Combatant Status Review Tribunals).   Both briefs suggested to the Justices that they essentially have no need to get sidetracked by a new appeal the government is pursuing to challenge the July 20 decision.  (Last Thursday, the government filed its appeal in the DTA procedures case, Gates v. Bismullah, 07-1054.)

As the new brief put it, “Nothing in the government’s [Bismullah] certiorari petition would in any way strengthen the government’s arguments in this case.  Rather, all signs show that DTA proceedings will continue for years before any petitioner receives a meaningful hearing on the merits.”

While the Court heard arguments in Boumediene and Al Odah 11 weeks ago, it had given a sign earlier that its decision in those cases might be affected at least in part by what the Circuit Court did in Bismullah.  And, during oral argument in early December in the pending cases, several of the Justices seemed interested in giving the Circuit Court some new assignments on detainees’ rights.   The new brief Tuesday, and the one filed by counsel for other detainees last Thursday, appeared designed at least in part to suggest that this would be no solution to the larger question of detainees’ rights.

The brief filed Tuesday contained a catalog of grievances about the Circuit Court’s DTA maneuverings, and a sharp new critique of government arguments being made in one of the first DTA cases proceeding slowly in the Circuit Court — the case of Parhat v. Gates (Circuit docket 06-1397).  Repeatedly citing to a brief the Justice Department filed Feb. 7 in the Parhat case, the detainees’ supplemental argument suggested that it shows how little authority the government foresees in the Circuit Court’s review of DTA matters.  One point, for example, is a government argument that the Circuit Court cannot judge “the evidence or the credibility of witnesses” in the CSRT detention-determination proceedings.  “If the D.C. Circuit cannot weigh evidence or evaluate credibility,” the new detainee brief contended, “it is highly unlikely that any DTA case could ever succeed.”

The new brief sought to counter an argument that Solicitor General Paul D. Clement had made during the Dec. 5 hearing before the Justices — that is, that the Circuit Court might have the power to order a detainee’s release if it finds a CSRT proceeding to be flawed.   The government is now arguing explicitly in the Parhat case that a failure found in one CSRT can only lead to a new CSRT, not to release, the brief noted.  “The ‘remedy’ that awaits petitioners at the conclusion of the DTA epic is likely no remedy at all,” the document added.

Although the Justice Department has filed its petition in the separate Bismullah case, and lays out there its arguments kas to why the Circuit Court has been too expansive in planning its DTA review, the Department may also file some response to the supplemental briefs now on file by detainees in Boumediene/Al Odah.  It is unclear, however, just how or whether the Supreme Court will take the new briefs into account.

Posted in Boumediene/Al-Odah v. Bush, Uncategorized