Wider inquiry into detainee confinement ordered

Wider inquiry into detainee confinement ordered

10:35 AM | Lyle Denniston | Comments (3)

FURTHER UPDATE Friday p.m.
The Supreme Court has extended the time for filing opening briefs in the two detainee cases pending there, with detainees' briefs due on Aug. 24 and the government brief due Oct. 9. Thus, that schedule will allow both sides to discuss in their opening briefs the Circuit Court ruling issued Friday. The order extending the time for briefing was issued July 13.

UPDATE: The D.C. Circuit decision discussed in this post has been awaited by the Supreme Court as it prepares to review, at its next Term, the legal rights of detainees being held by the U.S. military; the cases are Boumediene v. Bush (06-1196) and Al Odah v. U.S. (06-1196). When the Supreme Court agreed on June 29 to hear those cases, it said it would call for added briefing after the D.C. Circuit ruled -- as it now has -- in the cases described below. The Circuit Court ruling on Friday may have a major bearing on whether the Circuit Court's review of detainee confinement decisions is an adequate substitute for the habeas rights that the detainees are seeking to have the Supreme Court restore.

The D.C. Circuit Court, in a partial but significant setback for the Bush Administration, ruled on Friday that it will engage in a broad review as it decides whether to uphold military decisions to continue to hold detainees at Guantanamo Bay, Cuba, the military prison camp set up to hold "war-on-terrorism" captives. Partially rejecting the government's narrow definition of the Circuit Court's review powers under the Detainee Treatment Act 0f 2005, the three-judge panel said all information "reasonably available" to the government, plus any information offered by a detainee, is to be considered in DTA review. The decision can be found here.

The Court stressed that it will expect to examine all government information bearing on an individual detainee's case, and not just the specific evidence that the government used in deciding to keep a detainee in military prison. "The court must be able to view the government information with the aid of counsel for both parties; a detainee's counsel who has seen only a subset of the government information [used as actual evidence] is in no position to aid the court."

"The Court cannot, as the DTA charges us, consider whether a preponderance of the evidence supports [a detention] determination without seeing all the evidence, any more than one can tell whether a fraction is more or less than one half by looking only at the numerator and not at the denominator," Circuit Judge Douglas H. Ginsburg wrote for the Court. Circuit Judge Karen LeCraft Henderson joined the opinion in full.

One member of the panel, Circuit Judge Judith W. Rogers, wrote a concurrence, putting emphasis on possible limitations on court review that may buttress the argument that the DTA process is not an adequate substitute for habeas. Her opinion is likely to be used by detainee lawyers as they argue that even the process laid out Friday does not go far enough to protect detainees' rights.

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