Parhat - Detainee Treatment Act of 2005
The first of the DTA (Detainee Treatment Act of 2005) cases was decided Friday, with notice issued Monday:
http://www.scotusblog.com/wp/wp-cont...er-6-20-08.pdf
Quote:
On Friday, June 20, 2008, the court issued an opinion to the parties in the above-captioned case. Pursuant to the Detainee Treatment Act of 2005, the court held invalid a decision of a Combatant Status Review Tribunal that petitioner Huzaifa Parhat is an enemy combatant. The court directed the government to release or to transfer Parhat, or to expeditiously hold a new Tribunal consistent with the court's opinion. The court also stated that its disposition was without prejudice to Parhat's right to seek release immediately through a writ of habeas corpus in the district court, pursuant to the Supreme Court's decision in Boumediene v. Bush, No. 06-1195, slip op. at 65-66 (U.S. June 12, 2008). Because the opinion contains classified information and information that the government had initially submitted for treatment under seal, a redacted version for public release is in preparation.
Note that the government was given options: (1) to release Parhat; (2) to transfer Parhat (presumably to another status or to another jurisdiction); or (3) to expeditiously hold a new Tribunal consistent with the court's opinion.
Parhat was given the option to apply for habeas; but, as the pair in Omar-Munaf found out, habeas jurisdiction granted does not necessarily mean release. Those two should be remanded to Iraqi custody in accord with Justice Robert's decision.
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My 2 cents worth on US "war crimes" and "war criminals" - Take a deep breath and hold it.
Parhat redacted opinion issued
The DC Circuit issued its unanimous opinion in Parhat v. Gates, redacting quotation of classified evidence, at:
http://www.scotusblog.com/wp/wp-cont...in-6-20-08.pdf
Some key points in the holding:
Quote:
(slip p. 30)
In this opinion, we neither prescribe nor proscribe possible ways in which the government may demonstrate the reliability of its evidence. We merely reject the government’s contention that it can prevail by submitting documents that read as if they were indictments or civil complaints, and that simply assert as facts the elements required to prove that a detainee falls within the definition of enemy combatant.
and,
Quote:
(slip p. 33)
Accordingly, we direct the government to release Parhat, to transfer him, [19] or to expeditiously convene a new CSRT to consider evidence submitted in a manner consistent with this opinion. If the government chooses the latter course, it must -- to obviate the need for another remand -- present to that Tribunal the best record of Parhat’s status as an enemy combatant that it is prepared to make.
[19] The government is under district court order to give 30 days’ notice of intent to remove Parhat from Guantanamo. See Kiyemba v. Bush, No. 05-1509, Mem. Order at 2-3 (D.D.C. Sept. 13, 2005).
and,
Quote:
(slip p. 38)
Congress has directed this court “to determine the validity of any final decision of a Combatant Status Review Tribunal that an alien is properly detained as an enemy combatant.” DTA § 1005(e)(2)(A). In so doing, we are to “determine,” inter alia, whether the CSRT’s decision “was consistent with the standards and procedures specified by the Secretary of Defense for Combatant Status Review Tribunals[,] including the requirement that the conclusion of the Tribunal be supported by a preponderance of the evidence.” Id. § 1005(e)(2)(C)(i). A CSRT’s decision regarding enemy combatant status was not consistent with those standards and procedures unless the Tribunal had -- and took -- the opportunity to assess the reliability of the evidence that the government presented to it. Nor can this court conclude that such a decision was consistent with those standards and procedures unless we, too, are able to assess the reliability of the government’s evidence. Because the evidence that the government submitted to Parhat’s CSRT did not permit the Tribunal to make the necessary assessment, and because the record on review does not permit the court to do so, we cannot find that the government’s designation of Parhat as an enemy combatant was consistent with the specified standards and procedures and is supported by a preponderance of the evidence.
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Commentary on Parhat by Marty Lederman at:
http://balkin.blogspot.com/2008/06/c...ly-detain.html
and by Lyle Denniston at
http://www.scotusblog.com/wp/circuit...re-assertions/
Ashcroft et al. off the civil liability hook
The 2nd Circuit (in a 2-1 opinion) ruled today that Arar may not sue U.S. government officers for money damages based on allegations that he was captured and sent to Syria where he was tortured.
http://www.scotusblog.com/wp/wp-cont...ca-6-30-08.pdf
This decision was not based on a trial with evidence presented. For purposes of this decision only, Arar's allegations in his complaint (dismissed by the district court with prejudice) were assumed by the Circuit Court to be factually true.
The majority summarized its holding as follows:
Quote:
(slip pp. 6-8)
We must therefore determine (1) whether the district court had personal jurisdiction over the individual defendants; (2) whether Arar’s allegation that U.S. officials conspired with Syrian authorities to torture him states a claim against the U.S. officials under the TVPA; (3) whether to create a judicial damages remedy, pursuant to Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971), for Arar’s claims that U.S. officials (a) removed him to Syria with the knowledge or intention that he would be detained and tortured there and (b) mistreated him while he was detained in the United States; and finally, (4) whether Arar may seek a declaratory judgment that defendants’ actions violated his constitutional rights.
For the reasons that follow, we conclude that under the precedents of the Supreme Court and our Court: (1) Arar has made a prima facie showing sufficient to establish personal jurisdiction over Thompson, Ashcroft, and Mueller at this early stage of the litigation; (2) Count one of Arar’s complaint must be dismissed because Arar’s allegations regarding his removal to Syria do not state a claim against defendants under the TVPA; (3) Counts two and three of Arar’s complaint, which envisage the judicial creation of a cause of action pursuant to the doctrine of Bivens, must also be dismissed because (a) the remedial scheme established by Congress is sufficient to cause us to refrain from creating a free standing damages remedy for Arar’s removal-related claims; and (b) assuming for the sake of the argument that the existence of a remedial scheme established by Congress was insufficient to convince us, “special factors” of the kind identified by the Supreme Court in its Bivens jurisprudence counsel against the judicial creation of a damages remedy for claims arising from Arar’s removal to Syria; (4) Count four of Arar’s complaint must be dismissed because Arar’s allegations about the mistreatment he suffered while in the United States do not state a claim against defendants under the Due Process Clause of the Fifth Amendment; and (5) Arar has not adequately established federal subject matter jurisdiction over his request for a judgment declaring that defendants acted illegally by removing him to Syria so that Syrian authorities could interrogate him under torture.
In the circumstances presented, we need not consider the issues raised by the assertion of the state-secrets privilege by the United States—particularly, whether the exclusion of information pursuant to the privilege might result in the dismissal of certain of Arar’s claims.
We do not doubt that if Congress were so inclined, it could exercise its powers under the Constitution to authorize a cause of action for money damages to redress the type of claims asserted by Arar in this action. The fact remains, however, that Congress has not done so. Instead, it has chosen to establish a remedial process that does not include a cause of action for damages against U.S. officials for injuries arising from the exercise of their discretionary authority to remove inadmissible aliens. We are not free to be indifferent to the determinations of Congress, or to ignore the Supreme Court’s instructions to exercise great caution when considering whether to devise new and heretofore unknown, causes of action.
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Brief commentary by Lyle Denniston at:
http://www.scotusblog.com/wp/circuit...for-rendition/
This case will be of Canadian interest.
Hamdan & al-Marri Updates
The military commission trial of Hamdan will move forward next week, unless enjoined by a higher court.
Quote:
Analysis by Lyle Denniston
U.S. District Judge James Robertson refused on Thursday to delay the trial of a Yemeni national on war crimes charges - a trial scheduled to begin next Monday.
The judge issued an oral ruling after a morning hearing and said he would issue a written opinion probably by tomorrow morning so that either side could challenge it in the D.C. Circuit Court if they wished.
The judge said he based his ruling - on a motion filed by Salim Ahmed Hamdan, the detainee best known as the alleged driver of Osama bin Laden - on the fact that Congress and the President had decided that any review of the fairness of a military commission trial should occur after “final judgment” and not before. He also said that a recent ruling by the D.C. Circuit in another detainee’s case [Parhat v Gates, discussed in above posts] made it clear that all of the challenges that are raised against military commission trials can be addressed once the trial is over. He said lawyers for Hamdan had raised “novel and complex” constitutional issues but he did not think he needed to address them at this time.
http://www.scotusblog.com/wp/judge-r...-crimes-trial/
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The somewhat different al-Marri case (he was a foreign national arrested in the US) also was resolved at the Court of Appeals level, in a very divided set of 5-4 opinions, consisting of some 7 separate opinions in 216 pages. The net result was generic approval of the MCA system, with the addition of possible habeas corpus relief upon remand to District Court.
http://www.scotusblog.com/wp/split-d...n-on-al-marri/
Quote:
Analysis by Lyle Denniston
A federal appeals court on Tuesday upheld President Bush’s power to order the detention of a foreign student living in the U.S., based on claims he had terrorist links, but also ruled that the detainee must be given a new chance to challenge in court his designation as an “enemy combatant” — the basis for holding him.
.....
Because Judge Traxler’s vote was necessary to make a majority on each part of the ruling, and because he did not sign onto any opinion written by other judges on either part, his 35 pages of rationale generally will be considered the controlling justification for the entire decision. The four judges who voted against presidential authority to order the detention said they would not have ruled on the detainee’s right to challenge his detention, but they nevertheless voted to support Traxler on that point “to give practical effect” to an order to govern further developments in District Court.
......
The Traxler opinion concluded that Al-Marri is entitled to “further evidentiary proceedings on the issue” of whether he “is, in fact, an enemy combatant subject to military detention.”
The general rule, the judge said, is that “Al-Marri would be entitled to the normal due process protections available to all within this country,” but that general rule can be offset if the government first shows that it is outweighed by national security and that it would be too burdensome for the government to have to produce stronger evidence to justify a detention, in response to a detainee’s demands for more information from the government.
The al-Marri opinions are here:
http://www.scotusblog.com/wp/wp-cont...arrienbanc.pdf
The actual holding of the Court (what all of the judges could agree on about their disagreements !) was this:
Quote:
(slip pp.4-5)
PER CURIAM:
Ali Saleh Kahlah al-Marri filed a petition for a writ of habeas corpus challenging his military detention as an enemy combatant. After the district court denied all relief, al-Marri noted this appeal. A divided panel of this court reversed the judgment of the district court and ordered that al-Marri’s military detention cease. See Al-Marri v. Wright, 487 F.3d 160 (4th Cir. 2007). Subsequently, this court vacated that judgment and considered the case en banc.
The parties present two principal issues for our consideration: (1) assuming the Government’s allegations about al-Marri are true, whether Congress has empowered the President to detain al-Marri as an enemy combatant; and (2) assuming Congress has empowered the President to detain al-Marri as an enemy combatant provided the Government’s allegations against him are true, whether al-Marri has been afforded sufficient process to challenge his designation as an enemy combatant.
Having considered the briefs and arguments of the parties, the en banc court now holds: (1) by a 5 to 4 vote (Chief Judge Williams and Judges Wilkinson, Niemeyer, Traxler, and Duncan voting in the affirmative; Judges Michael, Motz, King, and Gregory voting in the negative), that, if the Government’s allegations about al-Marri are true, Congress has empowered the President to detain him as an enemy combatant; and (2) by a 5 to 4 vote (Judges Michael, Motz, Traxler, King, and Gregory voting in the affirmative; Chief Judge Williams and Judges Wilkinson, Niemeyer, and Duncan voting in the negative), that, assuming Congress has empowered the President to detain al-Marri as an enemy combatant provided the Government’s allegations against him are true, al-Marri has not been afforded sufficient process to challenge his designation as an enemy combatant.
Accordingly, the judgment of the district court is reversed and remanded for further proceedings consistent with the opinions that follow.
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The lesson that is beginning to emerge from these cases is that the MCA system itself (that is, trial by military commissions) is holding up fairly well to challenges; but that the courts are very uncomfortable with the CSRT (combatant status review tribunal) process - and with unilateral executive determinations of unlawful enemy combatant status.
In fact, the military judge (Keith J. Allred) in the Hamdan case, found the CSRT process to be deficient for a number of reasons (written opinion issued 17 Dec 2007). He then proceeded to determine Hamdan's status at a de novo hearing (5 & 6 Dec 2007), where both sides presented their proofs on the question of unlawful enemy combatant status vs. PW/POW status. He then entered findings of fact and concluded that Hamdan was an unlawful enemy combatant (written opinion issued 19 Dec 2007).
See, the following for links to Judge Allred's opinions, and new filings in the Hamdan MCA trial:
http://www.defenselink.mil/news/commissionspress.html
http://www.defenselink.mil/news/commissionsHamdan.html
Update on detainees' and government's positions -
links to briefs before the District Court (nothing on US's appeal brief, which may not be filed for awhile).
Quote:
Sharp dispute over shape of detainee cases
Saturday, July 26th, 2008 8:49 am Lyle Denniston
....
In the first formal moves to shape the federal courts’ review of the government’s power to keep detainees in captivity at Guantanamo Bay, the two sides in the courthouse battle proposed sharply differing approaches on Friday night. With agreement on few critical points, lawyers for the government and for detainees set up a running dispute that potentially could lead quickly to multiple appeals, perhaps reaching the Supreme Court.
As expected, the detainees’ attorneys suggested a sweeping and penetrating, if somewhat flexible, probe of the government’s reasons for original detention decisions and for continuing to confine captives, and Justice Department attorneys proposed a more streamlined process that would significantly narrow the judges’ review.
The briefs are each side’s attempt to carry out their view of what the Supreme Court had in mind in its June 12 decision (Boumediene v. Bush, 06-1195) declaring that the detainees have a constitutional right to challenge their captivity. The detainees’ arguments stress the historic importance of a detailed examination of Executive Branch decisions to hold individuals without charges, while the government’s arguments stress the need to keep the process confined in order not to intrude on the Executive’s “wartime” powers.
http://www.scotusblog.com/wp/sharp-d...ses/#more-7727
Detainees’ brief here:
http://www.scotusblog.com/wp/wp-cont...bf-7-25-08.pdf
Government brief here
http://www.scotusblog.com/wp/wp-cont...bf-7-25-08.pdf
Government’s proposed “case management” order here.
http://www.scotusblog.com/wp/wp-cont...er-7-25-08.pdf
Each side will file a response to the other’s document by 1 Aug.
One of the man-eating tigers,
(oops) one of the accused man-eating tigers,
rears its head.
Quote:
New attempt to stop war crimes trial
Tuesday, July 29th, 2008 6:56 pm Lyle Denniston
......
One of the Guantanamo Bay detainees facing war crimes charges claiming direct roles in the Sept. 11/ 2001, terrorist attacks - Ramzi bin al-Shibh - has asked a federal judge to block his trial before a military commission. Public defender lawyers for bin al-Shibh, in papers made public on Monday, argued that his trial should be blocked so that his lawyers can go ahead with their challenge claiming that the military commission system is illegal.
.....
The detainee is one of the four prisoners at Guantanamo - called “high-value detainees” by the government - who have been charged with crimes growing out of the 9/11 attacks. Military prosecutors have said that bin al-Shibh was “a coordinator of the 9/11 attacks.” He was captured in September 2002 at a site that prosecutors said was “an al-Qaeda safe house.” A date for his commission trial has not been set, but his motion said it was “imminent.”
.....
bin al-Shibh’s attempt to stop his war crimes trial is the second such attempt by a Guantanamo detainee. Salim Ahmed Hamdan - the first to go on trial before a commission at Guantanamo (he is not a “high-value” detainee) - failed to persuade District Judge James Robertson to delay his trial.
The Justice Department, having succeeded in keeping the Hamdan trial on track, repeated in its response to bin al-Shibh’s plea for an injunction with many of the same arguments it used against Hamdan’s request.
http://www.scotusblog.com/wp/new-att...-crimes-trial/
Not one of my "be kind to man-eating tigers" days.
Habeas Cases - Briefs Filed
on the process each side wants. As expected, they disagree; and the three judges hearing the cases may diverge in their opinions. Full discussion here:
Quote:
Analysis: Core of the habeas dispute
Saturday, August 2nd, 2008 7:18 am Lyle Denniston
......
Analysis
The second round of legal papers arguing how federal judges should probe Pentagon decisions to hold detainees at Guantanamo Bay strips the underlying dispute down to its core: what legal source governs that process? To the detainees, the federal habeas laws written by Congress control; to the government, only the Constitution remains to control them.
How federal judges resolve that issue — and three different judges are now taking on that initial task, and might well disagree over it — seems sure to shape the structure of the habeas review that the Supreme Court ordered for detainees in its ruling in June in Boumediene v. Bush.
The detainees’ view, if accepted, very likely would lead to a wider ranging inquiry, the government’s to a more narrowly confined review. Indeed, those are precisely the conflicting objectives that the two sides were pursuing as they filed, late Friday night, their responses to each others’ proposals on the “procedural framework” for the habeas cases.
http://www.scotusblog.com/wp/analysi...ute/#more-7762
The detainees’ new brief is here
http://www.scotusblog.com/wp/wp-cont...ure-8-1-08.pdf
The government’s is here
http://www.scotusblog.com/wp/wp-cont...ure-8-1-08.pdf
US 7 - Hamdan 0; US 0 - AQ 0,
since this is a split (Hamdan not guilty of being part of an AQ conspiracy)
Quote:
Hamdan convicted in split verdict
Wednesday, August 6th, 2008 11:12 am Lyle Denniston
....
In the first trial by a U.S. military commission in more than 60 years, a jury of six officers on Wednesday reached a split verdict of guilty and acquittal in the case of Salim Ahmed Hamdan, according to news accounts from Guantanamo Bay. The case is almost certainly going to be appealed, first through a military review system then through civilian courts, perhaps ultimately to the Supreme Court.
.......
The New York Times reported Wednesday morning that “the commission acquitted Mr. Hamdan of a conspiracy charge, arguably the more serious of two charges he faced, but convicted him of a separate charge of providing material support for terrorism.” The Times said sentencing would be decided at a separate proceeding beginning later in the day Wednesday. The maximum sentence is life, which Hamdan would serve at a facility on the U.S. Navy base at Guantanamo.
http://www.scotusblog.com/wp/hamdan-...-split-verdict
Miami Herald: “Bin Laden’s Driver Found Guilty of War Crimes,” by Carol Rosenberg
http://www.miamiherald.com/news/brea...ry/631090.html
New York Times: “Guantánamo Detainee Convicted by Military Panel,” by William Glaberson
http://www.nytimes.com/2008/08/06/wa...hp&oref=slogin
To Be Continued........
Federal Court Control of Gitmo ?
Not in the case below. One of the chamber of horrors arguments against allowing basic habeas petitions to Gitmo detainees was that allowing them would lead to court orders regulating prison conditions, etc.
Perhaps, some judge will enter that arena, but Judge Urbina declined.
Quote:
Analysis: What did Boumediene strike down?
Thursday, August 7th, 2008 8:11 pm Lyle Denniston
....
Analysis
The Supreme Court, in moving in June to clarify the legal rights of Guantanamo Bay detainees, made this explicit comment in the main opinion in Boumediene v. Bush (06-1195): “The only law we identify as unconstitutional is MCA Sec. 7, 28 USCA 2241(e)(Supp. 2007).” The MCA is the Military Commissions Act of 2006, and Section 7(e) is the so-called “court-stripping” provision - Congress’s now partially failed effort to scuttle all habeas rights of the detainees.
There are, however, two parts to Section 7(e). As lower court judges move to apply Boumediene, they are discovering what one judge on Thursday described as an “ambiguity” in that ruling.
....
In the end, using his discretion (which he presumably retained, since he did not find a lack of jurisdiction), the judge balanced the claims of the detainees to some relief from their “nearly seven years” of confinement without a trial with the government’s reliance on what he called “the ambiguity” in Boumediene, and the Pentagon’s need to keep control of security at the Guantanamo prison. He refused to order the six prisoners moved out of Camp 6 to Camp 4.
http://www.scotusblog.com/wp/analysi...e-strike-down/
Judge Urbina's opinion is here:
http://www.scotusblog.com/wp/wp-cont...urs-8-7-08.pdf