The Justice Department, in a new brief in the pending Supreme Court cases on detainees’ legal rights, argued that any reopening of the prisoners’ right to habeas would not be swift, but would face a variety of “fundamental and unprecedented issues” complicating that process. The brief, filed on Monday, was a response to added written arguments that the Court on March 17 had allowed detainees’ lawyers to make in Boumediene v. Bush (06-1195) and Al Odah v. U.,S. (06-1196).  Those cases were argued Dec. 5, and are awaiting a decision.

The government’s new brief can be downloaded here.  It was cast as a defense of the legal adequacy of the civilian court review of detainees’ status that Congress adopted as an alternative to habeas review, which Congress sought to wipe out.  In the Boumediene/Al Odah cases, the detainees are seeking a constitutional right to pursue habeas, and one of their key arguments is that the alternative — review by the D.C. Circuit Court under the Detainee Treatment Act — would not be an adequate replacement of habeas.

In its new brief, the Justice Department contended that there is no precedent that would apply to habeas for detainees being held at Guantanamo Bay, so the federal courts in essence would be starting over to fashion a system if the Supreme Court were to require one.

“Even  if this Court were to determine both that [the detainees] have a constitutional right to habeas corpus and that the alternative mechanism for review esta blished by Congress is constitutionally inadequate, a host of threshhold issues would need to be resolved concerning the nature of the resulting habeas proceedings,” the Department argued.

Among the issues it said would arise  are whether District Courts would conduct a completely new review of military decisions to hold detainees instead of deferring to military judgment, whether detainees would have a right to gather new evidence on their side and, if so, how far that right would reach, and whether the detainees would be allowed to see classified information used against them.

“And,” it added, “there can be little doubt that the district courts’ resolution of many, if not all, of those issues would be appealed (by either side).  Thus, if anything, habeas proceedings, by involving the district courts, would entail even greaer delay than DTA review.”

The brief also expanded on the government’s earlier defense of the legal adequacy of the Circuit Court’s alternative system of reviewing military detention rulings (made by Combatant Status Review Tribunals). Although the DTA law does not now provide for release of a detainee if the CSRT finding justifying detention were found to be flawed, the Supreme Court could impose that as a remedy if needed to save that system, the brief argued in some detail. While it indicated it would prefer that a flawed case merely be sent back to a new CSRT review by the military, it nonetheless said that release could remain an option for the Circuit Court.

Since the Justices have given no indication that they are close to a ruling on the Boumediene/Al Odah cases, presumably they will allow the government to file its new brief, and will consider it along with the detainees’ further challenges to the DTA and CSRT proceedings.

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