Federal Judiciary

U.S. moves to postpone other detainee cases

By Akin Gump Supreme Court Practice Group

The Justice Department, in a series of filings in the D.C. Circuit Court, went further Friday in attempting to delay proceedings in cases filed by Guantanamo Bay detainees seeking to challenge their continued captivity.  It wants each of the pending cases put on hold until after the Supreme Court takes action on an appeal the Solicitor General plans to file by next Thursday.

The first case in the lineup of Circuit Court tests of “enemy combatant” designations by the military is that of Paracha v. Gates (Circuit docket 06-1038).  The motion for stay filed in that case Friday can be downloaded here.

The Paracha case, further along than most of the other 180 pending detainee challenges, has a Feb. 15 deadline for the government to file with the Circuit Court a potentially wide array of information it has about that detainee, Saifullah Paracha.  The information supposedly will bear on whether the military was justified in designating him as an “enemy combatant” — the designation that leads to continued imprisonment at Guantanamo Bay.

The “combatant” finding was made by a military panel — technically, a Combatant Status Review Tribunal.  Paracha’s appeal contends that the CSRT was wrong in reaching that conclusion, and wants to challenge not only information that the CSRT directly considered, but anything else in government files that may have a bearing on the validity of its finding.

The government is planning to appeal to the Supreme Court in the case of Bismullah v. Gates (Circuit docket 06-1197) — the case in which the Circuit Court laid down rules on how it would conduct judicial review of CSRT findings.  The government has been contending that it should have to supply to the Circuit Court, and to the detainees’ lawyers, only the evidence that a CSRT directly considered. Anything beyond that is beyond the scope of what Congress mandated in allowing detainees to challenge CSRT findings, and would threaten disclosure of national security secrets, the government contends.

In the Bismullah case, the Justice Department asked on Monday for a stay of that and all the remainder of the 180 detainee challenges, pending Supreme Court action on the coming appeal in Bismullah. The Circuit Court has taken no action on that request.

But detainees’ lawyers have challenged the authority of the Circuit Court panel that decided Bismullah to issue such a broad stay, reaching all other cases; apparently the Justice Department decided to start filing stay motions in each of the cases to get around any such potential lack of authority.

The Department has said that, if the Circuit Court does not postpone its filing obligations in the pending cases, it will ask the Supreme Court to order a stay while the Justices consider the coming appeal.

Full post as published by SCOTUSBLOG on February 08, 2008 (boomark / email).