Federal Judiciary

No rehearing in Parhat

By Akin Gump Supreme Court Practice Group

The D.C. Circuit Court has turned down a government plea to narrow its ruling — the first of its kind — overturning a Pentagon decision to hold a prisoner at Guantanamo Bay.  In a brief order dated Tuesday, the three-judge panel denied without explanation a rehearing petition filed by the Justice Department a month ago in Parhat v. Gates (Circuit docket 06-1397).

The Department’s rehearing plea was an attempt to head of arguments by detainees’ lawyers that the Parhat ruling supports their claim that federal judges have authority to order the release of Guantanamo detainees no longer considered a terrorism threat — including, perhaps, release into the U.S. itself.  The attorneys for Huzaifa Parthat are asking a federal District judge to allow him temporarily to enter the U.S., and to live and work in the Washington, D.C., area while his future transfer to another country is being worked out.

The Pentagon no longer considers Parthat, a member of the Chinese minority group, the Uighurs, to be an “enemy combatant.” But the Pentagon, Justice Department and State Department also strenuously insist that federal courts have no authority to order that such an individual enter the U.S.

In its rehearing petition, the Justice Deparmtnet said it was not asking the Circuit Court at this pint to rule finally on judges’ power to control transfer of prisoners out of Guantanamo, but only to “clarify that it has not resolved the scope of the District Court’s authority” to order release, including into the U.S. mainland.   The Circuit Court never sought a response to the petition from detainees’ counsel. Since its denial came without explanation, there is no way to know whether the Circuit Court was trying to send any signal about the underlying question of judicial power.

That leaves it, in the first instance, up to U.S. District Judge Ricardo M. Urbina, who is considering Parhat’s plea to enter the U.S. temporarily.  The judge will hold a hearing on the issue on Oct. 7 in the case (District Court docket 05-1509).  Meanwhile, the Circuit Court, in a group of cases involving the Uighur detainees, will hold a hearing Sept. 25 on the question of judges’ power to order transfers or release of Guatanamo detainees no longer considered enemy combatants (the lead case is Kiyemba, et al., v. Bush, Circuit docket 05-5487).

Full post as published by SCOTUSBLOG on September 03, 2008 (boomark / email).