Federal Judiciary

US: Delay on detainees would be ‘modest’

By Akin Gump Supreme Court Practice Group

In a final plea to gain time for the federal government’s new appeal on detainee rights to be processed by the Supreme Court, the Justice Department on Thursday afternoon argued that it was seeking a delay that would only last months, not years, as detainees’ lawyers have contended.  In a reply to the detainees’ resistance to a stay of the D.C. Circuit Court ruling at issue, the Department said the postponement it seeks “is both modest in scope and vital to national security.”  The reply can be found here.

The government’s stay application (07A677), filed with Chief Justice John G. Roberts, Jr., will be considered by the full Court at its private Conference on Friday.  The Court also will examine then a government motion to expedite the handling of its appeal in Gates v. Bismullah (07-1054) — a request that detainees’ lawyers fully support.  Prompt action is expected on both.

The detainees had asserted on Wednesday that, if the Court does postpone enforcement of a July 20 Circuit Court ruling, it will be years before any Guantanamo Bay detainee gets any review of his detention.  The judicial review process, the detainees’ counsel contended, has been moving slowly up to now, and would essentially be shut down if the Supreme Court issued a stay now in the Bismullah case.

 Answering that argument, U.S. Solicitor General Paul D. Clement said that the only part of the Circuit Court ruling that would be put on hold is a mandate that the government produce — for court review of detention decisions — a wide array of information never considered by the Pentagon’s detention panels (so-called Combatant Status Review Tribunals).  Review could thus go ahead, in the Circuit Court, on the basis of the information the CSRTs actually considered, Clement contended.  (That, of course, is the limited form of review the government has been promoting — unsuccessfully — in the Circuit Court).

The government has sought a stay pending Supreme Court final action on its appeal in Bismullah — an appeal that challenges the Circuit Court mandate to produce in court an expansive file of information in government hands that may bear upon the status of Guantanamo detainees, but was never presented to CSRT detention panels.  The government has contended it simply cannot reassemble that information, so it may have to start all over by summoning new CSRTs.  It should not have to choose between those options during the time it would take for the Court to dispose of the Bismullah case, Clement argued Thursday.

Full post as published by SCOTUSBLOG on February 21, 2008 (boomark / email).