Monday, 16 April 2007

Uncertainty on detainee cases

Uncertainty on detainee cases

01:43 PM | Lyle Denniston | Comments (0)

With Guantanamo Bay detainees' lawyers poised to return soon to the Supreme Court to protect the captives' legal claims, the D.C. Circuit Court has issued briefing orders in related cases that may slow down the rapidly developing legal dispute. On Friday, a motions panel at the Circuit Court set a briefing schedule in three detainees' cases on the issues of how the Circuit Court will handle new appeals that are reaching it from the District Court in Washington. But a Circuit Court merits panel has not yet issued its mandate in the underlying packet of cases, leaving the legal situation uncertain as of midday Monday.

These developments trace back to the Supreme Court's denial two weeks ago of review in the underlying cases (the lead cases were Boumediene v. Bush, 05-1195, and Al Odah v. U.S., 05-1196). That denial of review left intact, at least for the time being, a Feb. 20 decision by the Circuit Court that the detainees no longer have any right to challenge their captivity through habeas petitions and, in fact, have no constitutional rights at all. The Feb. 20 case was to be put into effect last Friday, when the Circuit Court merits panel was due to issue the mandate. Detainees' counsel had asked that panel to delay the mandate, so that they could get assurances about lawyer access to the detainees at Guantanamo and lawyer access to information used or to be used in detention proceedings. If the mandate were to be issued, the lawyers were ready to return to the Supreme Court for "emergency relief."

In the meantime, attorneys in three other cases had asked the Circuit Court to give them some added time to file "motions to govern" -- that is, motions asking the Circuit Court to spell out what procedures the Court will be following as new detainee appeals reach it. These are separate from appeals being pursued under the Detainee Treatment Act -- another category of activity in the increasingly complex array of business before the Circuit Court, all of which is likely, at some point, to reach the Supreme Court..

If the Circuit Court were to issue its mandate in the underlying cases, and that led to a dismissal of District Court cases in the three other cases, there would be nothing left to appeal in those cases. That is why the actions of the Circuit Court motions panel on Friday, together with the inaction on the mandate question, were puzzling to lawyers involved in the cases.

In those three cases, the panel gave each side until April 20 -- this Friday -- to file their pleadings, with responses by April 30 -- two weeks from today. It was unclear whether there had been any coordination between the different panels at the Circuit Court in these latest developments. In the meantime, the Supreme Court has not yet been drawn formally back into the legal fray. That could come at any time, however.

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