Federal Judiciary

U.S. to try again to curb DTA review

By Akin Gump Supreme Court Practice Group

The Justice Department is discussing a return to the Supreme Court, to ask it to curb the authority of a federal appeals court to engage in a wide-ranging review of military decisions to detain prisoners at Guantanamo Bay.  The plans, reportedly conveyed to attorneys for detainees, remain subject to approval by the U.S. Solicitor General, it is understood.  An initial attempt may be made to get the lower court, the D.C. Circuit Court, to react first.

Under discussion are ways to block, and ultimately to get overturned, the D.C. Circuit order that has revived its broad review mandate.

The Department has made it clear, in prior court filings, that it remains deeply disturbed by the Circuit Court’s ruling — actually, a pair of rulings last year — in the case of Bismullah v. Gates (06-1197).  For example, government lawyers wrote in a Circuit Court brief last month that Bismullah was “wrong when it was issued” and is “incompatible” with the Supreme Court’s June 12 decision in Boumediene v. Bush on the meaning of the Detainee Treatment Act of 2005, which spells out the Circuit Court’s role in examining military detention.  They also said that the Bismullah decision threatens “grave damage to national security.”

Two days ago, however, the Circuit Court reinstated Bismullah, turning aside a Justice Department request not to do so (see this post.)  The Department had appealed Bismullah to the Supreme Court last Term, and, at the end of the Term, the Justices sent the case back — without a definitive ruling on it — to the Circuit Court for a new look in the wake of the Boumediene decision on detainees’ rights.

Since the Court, in returning the case to the appeals court, had vacated the prior ruling, the Department has contended, it sent a message that the decision was wrong on “the nature of review” that the Circuit Court was to undertake in DTA cases.

The Department has also asked the Circuit Court to put on hold all DTA cases, so as not to interfere with government responses to the challenges to captivity that detainees’ lawyers are now pursuing in more than 200 habeas cases in District Court — challenges that the Supreme Court allowed in its Boumediene decision.  So far, the Circuit Court has not ruled on the abeyance request.

This controversy is about one aspect of the Circuit Court’s assignment under DTA:  how much information must the government supply, to the Circuit Court and to detainees’ lawyers, in order to try to justify holding individuals at Guantanamo?  The Bismullah ruling requires that the government supply a broad array of information of what intelligence agencies have in their files about individual detainees. But the government contends that the only thing the Circuit Court should be allowed to review is the actual information that was considered by the Pentagon — that is, by so-called “Combatant Status Review Tribunals” - when original decisions to detain were made, in some cases as long as four years ago.

That controversy is deep enough that the Circuit Court split 5-5 last February in refusing to reconsider en banc the Bismullah panel decisions.

The Supreme Court did not resolve that controversy in its action June 23 on the government’s initial appeal of Bismullah.

 It is unclear when the Justice Department will make its next moves to try to restrict DTA review.  It can ask the three-judge panel for a stay (the panel split 2-1 in reinstating the earlier rulings); it can ask the en banc Court for a stay (the 5-5 split earlier against full court review makes that option not very promising), or it can ask Chief Justice John G. Roberts, Jr., for a stay while the planned appeal proceeds.

If the decision is made to first test its chances of reconsideration in the Circuit Court, the Department may well face the prospect of the same split that kept the full court from getting involved earlier.  The ten active judges on the Court remain the same.  Whether any might change his or her mind, to make a majority in favor of en banc review, of Bismullah, might depend upon whether the government was able to make its point that the Boumediene decision changed the legal landscape.

The Department’s lawyers interpret the Boumediene decision as an interpretation of the Detainee Treatment Act that would limit the Circuit Court’s review simply to the information that the government had laid before the Pentagon status tribunals in obtaining original detention findings.  The detainees’ lawyers take the view that the Supreme Court only found that DTA review process to be an inadequate substitute for habeas.

Full post as published by SCOTUSBLOG on August 27, 2008 (boomark / email).