Analysis: Government seeks narrow review on detainees

Thursday, March 01, 2007

Analysis: Government seeks narrow review on detainees

Posted by Lyle Denniston at 04:20 PM

UPDATE 4:20 PM: Added information on petitioners' reply to this morning's opposition by the government - see parenthetical in third paragraph.

The Bush Administration on Thursday urged the Supreme Court not to speed up its review of the case of detainee Salim Ahmed Hamdan and, in making its argument, appeared to be suggesting that the Court's review of any detainee cases this Term be limited to the issues resolved by the D.C. Circuit Court. If the Court were to agree to this approach, there would be no prompt review of any detainees' attempt to regain the power to challenge coming war crimes trials before military "commissions." All that could be before the Court would be detainees' plea for the right to pursue challenges to their detention as "enemy combatants."

The filing by the Solicitor General can be found here. While its specific plea is that the Court deny a motion to expedite the combined appeal of Hamdan and another detainee, Omar Khadr, the government's opposition includes comments that leave little doubt it wants any military commission challenges to go first through the D.C. Circuit, and only after trials have been held and guilty verdicts reached.

(UPDATE: Early Thursday afternoon, lawyers for the two detainees filed an answer to the government's filing. It can be found here. The reply argued that it is not "efficient or sensible" to put off consideration of this appeal, and delay in considering the legal status of detainees facing war crimes charges will lead to "years of additional litigation." Returning the case to the D.C. Circuit for review of their right to pursue their challenge would not accomplish anything, they contended. Further discussion of the detainees' answers to the government's arguments can be found in the concluding paragraphs below.)

At this stage in the Supreme Court, the legality of detentions at the military prison camp at Guantanamo Bay, Cuba, and the legality of the war crimes trial commissions, are not before the Court. All that is at issue now in the combined Hamdan/Khadr petition (06-1169) is whether these two detainees can regain a right to pursue habeas challenges to the commission system; they ultimately want the courts to bar any trial before such commissions. Thus, they want to make their case before any such trial starts.

The government, on the other hand, belives that Congress has validly taken away any right of any detainee facing a commission trial to file a habeas challenge, leaving them the single option of challenging a final commission conviction before the D.C. Circuit.

The choice between those two positions is what is bascially at stake in the Hamdan/Khadr petition. But, for the Court to consider those positions, it would have to agree to hear that petition -- this Term or next. A denial of expedition would probably mean that the Hamdan/Khadr appeal would not be heard this Term, if at all. The Court, of course, could simply deny it when it does come up for consideration. The Solicitor General's filing contains very clear indications that, when the petition does come up for grant or denial, the government will urge a denial. If expedition is granted, the SG response to the petition would likely be due March 21; if it is denied, that date switches to March 29.

Most of these considerations were in the background as the Hamdan/Khadr move for expedition was filed on Tuesday, along with the petition. And they are also in the background of the government's opposition on Thursday to expedited consideration of the petition..

The Court is scheduled to take up the plea to expedite the Hamdan/Khadr petition at its Conference on Friday. It will also consider the Solicitor General's filing at that time.

The Hamdan/Khadr petition is unusual, and the Solicitor General focuses on that as part of the government's resistance. The Solicitor Geneeral refers to that appeal as of "makeshift nature," making it "a poor candidate for review, much less expedited review."

Hamdan has been denied a right to challenge the war crimes commission by a U.S. District Court, and Hamdan wants the Justices to hear that case without waiting for the D.C. Circuit to review the District Court decision. Khadr has been denied a right to challenge his "enemy combatant" status by the D.C. Circuit. They both joined in a single petition, because both are attempting to head off war crimes trials; they are two of the only three Guantanamo detainees so far charged with such crimes.

The government argues that the Supreme Court's Rules do not permit such a combined appeal testing two different courts' rulings in the same petition. The motion, the response contends, identifies "no case in which this Court has permitted the filing of such a petition."

It goes on to point out that Khadr was involved in a group of detainee cases that the D.C. Circuit Court decided on Feb. 20, finding that Congress has denied all habeas rights to Guantanamo prisoners who seek to challenge their captivity. Other detainees in that group are to file their own petitions for review in the Supreme Court next Monday, and the government has agreed that those should be considered on an expedited basis.

Khadr, the Solicitor General suggests, could have filed his own, separate petition from the Circuit Court ruling, and the government would have agreed to expedition on that, too.

Any issues that are common to the Hamdan/Khadr petition and the coming appeals by detainees can be fully considered if the Court agrees to hear the other detainee cases, the government said. But, it went on, any attempt to raise other issues in the Hamdan/Khadr petition would not be appropriate because, to date, no court at any level has ruled on those separate challenges to the loss of habeas rights.

In the other detainee cases, the only constitutional issue that the D.C. Circuit decided on the cutoff of habeas rights was whether that was an unconstitutional suspension of the writ. Hamdan and Khadr also seek to argue that the cutoff also violates the doctrine of separation of powers, equal protection guarantees, and the constitutional ban on a "Bill of Attainder." The District Court did not decide those in Hamdan's case, and the D.C. Circuit was not asked to decide them in the other detainee csses, the Solicitor General notes. Decisions on those separate issues, the response argues, "would benefit from the normal decisional process" before reaching the Supreme Court.

The government does suggest that the Court could consider how the cutoff of habeas rights affects those facing war crimes charges, as part of its potential review of the other detainees' cases this Term. But it goes on to suggest that those issues were not raised in the D.C. Circut, or decided by it -- a situation that normally would put them beynd Supreme Court review.

If the other detainees' cases go forward in the Court this Term, the response said, "the government should not be subjected to the added burden of responding on a highly expedited basis to an additional set of arguments that, by [Hamdan/Khadr's] descriiption, are 'in many ways distinct' " from the issues in the other detainee cases. The review of those other cases, it added, would not benefit from "injecting new issues into the casethat have not yetbeen decided by any court."

In its final argument, the government argues that Hamdan and Khadr woudl not be harmed if they had to go through war crimes trials, because the new Military Commissions Act would allow them to seek to remedy any "legal defect in those proceedings" in an appeal to the D.C. Circuit from final judgments of conviction. Pre-trial appellate review of legal challenges to a prosecution that has not yet begun, it said, "is strongly disfavored and rarely permitted."

"Requiring [Hamdan and Khadr] to await the outcome of their prosecution to challenge the constitutionality of the MCA places them in the same position as the vast majority of criminal defendants facing trail before courts that presumptively have jurisdiction," the government concludes.

The two detainees' lawyers, in their reply, sought to counter the arguments of the government with these points:
** Speeding up review of their appeal would only require the government to file its response eight days earlier than it would be required to do so anyway, under Court Rules.
** Because Hamdan and Khadr face early war crimes trials, their case is a stronger candidate for swift review than that of other detainees not facing charges.
** Their appeal has enough of a chance of being reviewed by the Court that the Court at least should have the chance to consider doing so promptly.
** If the motion to expedite is denied, the government may seek added time for its response, putting off Court consideration for perhaps an added six weeks.
** Granting their case now, and hearing it along with the other detainees' appeals, will bring the full array of issues on detainees' habeas rights before the Court. No one involved in the other detainees' cases will be able to raise the separate questions this appeal poses.
** The D.C. Circuit ruling in the other detainees' cases already settles the habeas issue for all detainees so far as that Court is concerned, so there would be no purpose in sending the Hamdan case back there for review.
** These two detainees' claimed right not to be subject to "an unlawful trial" by military commission "will be lost irretrievably if review is delayed."
** The combined petition of Hamdan and Khadr seeking review of differing lower court rulings is within the Court's Rules for a joint petition.
** It would not be a burden on the government to respond promptly to the issues raised in this appeal, especially since the government has been briefing the same issues in the lower courts and is thus already familiar with what is at stake.