-
This will take awhile
to sort out - the appeals and hearings in a number of pending DC cases.
Quote:
US files first appeal in new detainee cases
Friday, July 25th, 2008 3:05 pm Lyle Denniston
....
The Justice Department on Friday notified the federal judge in charge of coordinating scores of new Guantanamo Bay detainees’ cases that it is appealing his order requiring the government to give advance notice before it moves any prisoner out of the military prison on the island of Cuba. This marks the first appeal in what could be a number of them as deep controversies continue to split government attorneys and lawyers for the captives.
...
In a notice of appeal Friday, the Department said it was appealing Hogan’s order “in its entirety” in 117 pending habeas cases filed by detainees. The notice, as usual, contained no explanation of the basic and scope of the appeal, other than contesting all of the Hogan order.
First detainee plea to come to U.S.
Thursday, July 24th, 2008 6:29 pm Lyle Denniston
....
In the first effort to win release into the U.S. — to the Washington, D.C., area — of a Guantanamo Bay detainee, lawyers for a member of a Chinese Muslim minority have asked a federal judge to order the Pentagon to free him immediately. The individual is Huzaifa Parhat, whose case is the furthest along of any of more than 200 Guantanamo prisoners who are challenging their detention.
http://www.scotusblog.com/wp/
----------------------------------------
The D.C. District Court now provides a webpage for the Gitmo cases.
Quote:
WASHINGTON, DC., July 25, 2008 - The United States District Court for the District of Columbia today unveiled a web page for the Guantanamo detainee habeas cases before the Court. The webpage includes links to recent opinions and orders, press releases, notices and general information about the Court. A link to the web page can be found at the top of the Court’s home page
www.dcd.uscourts.gov
which leads to
http://www.dcd.uscourts.gov/public-docs/gitmo
Looks like the whole ball of wax (hundreds of ops & orders)- maybe, I should get back into trial law. Not likely, John Michael, not likely.
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Judges writing orders restrict the movement of prisoners is not new. In fact I've seen dozens of these up to and including housing assignment (like no solitary confinement). I know that it may seem small potatoes but that kind of custodial interference is not normal but does occur. I wonder what the appeal will actually look like.
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Moving prisoners
Guess we'll just have to wait. I'll post a link if something shows.
During our Civil War, a common trick (to defeat or delay habeas hearings) was to move the prisoner around from jail to jail. Refer to a history on the Copperhead cases.
I'd suspect Judge Hogan's motives were more practical - insuring that he and legal counsel know where the detainees are.
-
I can't find a link but I thought after the New Mexico riots judges were in charge of the department of corrections and reviewing housing assignments and such (especially the privatized) for the facilities. Somewhere I have a few books on incarceration reform and corrections history (legal).
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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.
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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.
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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
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Hamdan Jury is Out,
and will decide the case.
While the lead of the Times article has a slant (IMO), the remainder does outline the case fairly well - and the jury panel in general. Since Judge Allred has not filed written opinions since the trial began (not unusual), I cannot attest for the reporter's accuracy.
Quote:
Jury is out for Hamdan -- and the tribunal process
The first person to be tried in a military tribunal at Guantanamo will remain incarcerated no matter the verdict. Concerns remain about the procedure's fairness.
By Carol J. Williams, Los Angeles Times Staff Writer
August 4, 2008
GUANTANAMO BAY, CUBA -- The war crimes case against Salim Ahmed Hamdan today goes to a jury of his enemies, hand-selected by the Pentagon official who charged him on behalf of a president who has ordered him imprisoned even if acquitted.
http://www.latimes.com/news/nationwo...,2040961.story
Note: This may already be old news as you read this.
-------------------------------------------
In the related D.C. habeas cases, both Marty Lederman and Lyle Deniston has posted discussions of the overall issues, with links to a number of their previous posts and to the cases and briefs involved (some already cited in previous posts).
Quote:
Analysis: Is Procedure or Substance (or Both) at the “Core” of the GTMO Habeas Cases?
Saturday, August 2nd, 2008 1:55 pm Marty Lederman
.....
Lyle’s post below continues his indispensable series on the procedural disputes that the district court judges in D.C. are about to (begin to) resolve in the GTMO habeas cases.
Once those questions are answered, however, there is an even more important question lurking, one on which the two sides appear to be even farther apart: What, exactly, is the scope of the authority Congress has conferred upon the President to use indefinite military detention? In other words, what is the proper definition of “enemy combatant”? That was the second question presented in Boumediene, and it was briefed by Paul Clement and Seth Waxman, but the Court did not reach it.
[text with discussion and links follow this]
http://www.scotusblog.com/wp/analysi...-habeas-cases/
Lyle Deniston analysis, ref'd by Lederman, is linked in my post above.
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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........
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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
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Jawad case coming up
Mohamed Jawad is charged as an unlawful enemy combatant, with attempted murder and committing serious bodily harm, based on a grenade thrown into military vehicle wounding 2 SF NCOs and their Afghan interpreter.
This is a very simple case factually. The guy either did it, assisted an accomplice to do it, or he didn't (i.e., was an "innocent by-stander"). It has received considerable press for reasons not material to the charges.
Charge Sheet at
http://www.defenselink.mil/news/Jan2...awadcharge.pdf
Defense Brief No.1
http://www.defenselink.mil/news/d200...on%20D-007.pdf
Defense Brief No.2
http://www.defenselink.mil/news/d200...20Detainee.pdf
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Khadr trial approaching
Omar Ahmed Khadr originally was charged with murder, attempted murder, conspiracy with AQ, providing support to AQ & spying - non-capital case on all counts.
As with Jawad, the murder part of the case is not factually complex - the guy did it or he didn't. The other charges are more akin to Hamdan.
Also, as with Jawad and more so, the Khadr case has generated a large press coverage on issues not material to the charges.
Quite a few pleadings & opinions have been filed in this case. Some are not worth looking at because they are heavily redacted (classified) - e.g., a 7MB .pdf file "06/04/2007 - Motion Session (Charges dismissed)" of 305 pages (95+% redacted). Two rulings of interest (to me) are linked below.
Charge Sheet
http://www.defenselink.mil/news/Apr2...drreferral.pdf
Filings Inventory thru 7 May 2008 (30 pages)
http://www.defenselink.mil/news/d20080508us-khadr.pdf
Ruling No 1 (Bill of Attainder)
http://www.defenselink.mil/news/Feb2...1attainder.pdf
Ruling No 2 (Child Soldier)
http://www.defenselink.mil/news/d20080430Motion.pdf
------------------------------
I'll post something within the near future on upcoming events in Parhat (## 44 & 45) - the Uighur Muslim whose claim was basically this:
Quote:
from Lyle Denniston, link in #45
Parhat is a Chinese citizen of Uighur heritage. The Uighurs reside mainly in the far-western Chinese province of Zinjiang, which they call East Turkistan. Parhat claims that he fled China because of oppression and torture there, and went to Afghanistan to fight against China. He claims that he had never engaged in any hostilities against the U.S., and that his only enemy is China.
The DC Circuit held on the facts that he was not an enemy combatant. The problem is what to do with Mr. Parhat, who has been found not guilty. China might like to take him, but that would probably mean a de facto death sentence for Parhat. This case has some aspects of a human rights case, where positions cannot be easily divided into left and right, liberal and conservative.
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Parhat and the Uighurs
This is a long series of posts, but they are needed to understand the last one - which is news.
Quote:
Analysis: Escalating the Parhat case
Tuesday, August 19th, 2008 7:25 pm | Lyle Denniston
Analysis
In the annals of the ongoing constitutional battle in America’s courts over the “war-on-terrorism,” Shafiq Rasul, Yaser Esam Hamdi, Salim Ahmed Hamdan and Lakhdar Boumediene already have made history — especially in the Supreme Court. It now appears that Huzaifa Parhat could be the next detainee added to that list.
A member of a long-persecuted Chinese Muslim community, the Uighurs, Parhat is moving rapidly toward a courthouse showdown of major proportions.
He is attempting to become the first Guantanamo Bay detainee to take the witness stand in a civilian courtroom inside the U.S., to make a personal case for freedom, and, more significantly, he is seeking actual release into the U.S. to live, at least temporarily, with a group of Uighurs in the Washington, D.C., area. ...
http://www.scotusblog.com/wp/analysi...e-parhat-case/
This is no longer a run of the mill "enemy combatant" case, because Parhat can no longer be considered even an accused "enemy combatant". That follows from two facts:
1. The Court of Appeals' holding that the government, in his DTA hearing, had not introduced enough evidence to meet even the low "preponderence of the evidence" standard (the 50-yard line and a nose). Judging from that opinion, the evidence presented was multiple level hearsay, and not very pursuasive hearsay at that.
2. The Court of Appeals gave the government the chance to retry Parhat's DTA status. The government waived that right and declined to retry Parhat.
The problem is what to do with Parhat and the other Uighurd. Back to Lyle's analysis:
Quote:
Parhat and the government agree that he should not be sent back to China, his home country, because of his apparently very real fears of further persecution. But the government has told the courts repeatedly it has been unable to persuade any other country to accept him. And, until it does, the government has argued, he must remain at Guantanamo to “wind up” his detention.
The situation with Parhat is apparently not an isolated one. An unknown number of detainees (the number could be substantial) want release, but do not want to be sent back to their home countries, for fear of torture or abuse. Even if ruled not to be enemy combatants, the “wind up” theory would keep them in the Guantanamo prison for unspecified periods.
Recent Chinese problems with Uighurs substantiate the practical problem. Another practical problem is that Parhat and his friends are not white lambs. Their story is that they came to Afghanistan to fight Chinese - the story makes more sense if they came there to learn how to fight Chinese.
If they were simply illegal immigrants to the US, the INS rules would apply; but we brought them here. We do not want to send them back to Afghanistan - they might change their mind about who their enemy is. And, I do not really want them living next door to me.
In light of the legal costs that will build up in this and related cases, the parties should make nice and agree that the government (our taxes) purchase a nice, secure Holiday Inn Express with room service. We might save some money that way.
In any event, here is Parhat's brief and its bottom line:
Quote:
We concede that there is a substantial practical reason why this Court may wish to implement the Circuit’s ruling in stages. The government is authorized to transfer Parhat to an appropriate and safe third country. And nothing would prevent it from effecting a transfer by exercising its power to deport (again, to a proper country) even after Parhat were physically present. Accordingly, a practical balancing suggests that he should first be paroled here, under such reasonable conditions of release as the Court imposes. The Court may grant to the government a reasonable time to attempt to implement an appropriate transfer before final judgment is ordered in his habeas case. His presence here would, as a practical matter enhance chances of a transfer, and the Court might appropriately impose conditions to protect the government’s legitimate interest in so doing. This must happen promptly. The urgency of relief is only underscored by this Court’s recent determination that it may not intrude judicially into the conditions of confinement in Guantánamo.
http://www.scotusblog.com/wp/wp-cont...ct-8-15-08.pdf
A series of other detainee events ensued after 19 Aug, which seem best discussed one by one. However, one of them has an Uighur update
Quote:
Detainee hearings start Oct. 6
Thursday, August 21st, 2008 10:12 pm | Lyle Denniston
......
Meanwhile, down the corridor from Judge Leon’s courtroom, U.S. District Judge Ricardo M. Urbina was holding a hearing on the fate of 17 members of an often-persecuted Chinese Muslim minority, the Uighurs, who are being held at Guantanamo. The Pentagon has decided that it will no longer seek to prove that five of them should remain designated as enemies, but the government has not yet found countries other than China to take them.
Judge Urbina chastised the government for saying in court papers that it was “constantly reviewing” its chances for releasing the Uighurs, and yet had not been able to decide whether all of them should remain at Guantanamo under the label “enemy combatant.”
The judge also suggested that he may agree to a request by the Uighur detainees’ lawyers that they be brought personally to the U.S., to appear in court to defend themselves against accusations of terrorist links. “Maybe that is an option,” the judge remarked.
Among the group whose cases are in Urbina’s court is Huzaifa Parhat, who is seeking release into the U.S. to live in the Washington, D.C., area temporarily while he seeks to win his release from continued captivity. The Pentagon has decided he is no longer an “enemy combatant,” but the government is fervently opposing any attempt to bring detainees to the mainland.
http://www.scotusblog.com/wp/detaine...s-start-oct-6/
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Judge Leon's Fast-tracking
We have a fast-stepping judge here
Quote:
Detainee hearings start Oct. 6
Thursday, August 21st, 2008 10:12 pm | Lyle Denniston
....
In late 2001, just weeks after the government first started taking prisoners in the “war on terrorism,” Bush Administration officials chose Guantanamo Bay as the place to hold those detainees in order to keep them beyond the reach of U.S. courts and away from any terrorist activity. Now, more than six years and four Supreme Court decisions later, the detainees for the first time will get a hearing in civilian court on claims they are being held unlawfully; the first hearing is set to start Oct. 6.
U.S. District Judge Richard J. Leon, who is working on what he calls a “compressed” timetable, disclosed Thursday that he will hold the first habeas hearings on a day that he said “seems only fitting — the first Monday in October.” That, of course, is the same day the Supreme Court returns to work after its summer recess, some four months after its ruling in Boumediene v. Bush giving the Guantanamo detainees a constitutional right to pursue habeas challenges to their captivity.
The Boumediene case (it gets its name from Lakhdar Boumediene, an Algerian, and includes five others from that country, all of whom had been living in Bosnia) is back in District Court, before Judge Leon. Mostly by coincidence, the judge said Thursday, that will be the case that comes up first for a week of hearings in October.
While 14 other District Court judges share the more than 200 Guantanamo habeas cases now on file, it appears that the 24 cases in Leon’s court are moving on the fastest track. The judge said, at a four-hour hearing Thursday, that he “remains committed to conducting hearings in these cases — all 24 — between now and Christmas.” Decisions on whether any detainee wins release could come soon after that. ... [various procedural rulings are discussed in the paragraphs following]
http://www.scotusblog.com/wp/detaine...s-start-oct-6/
Nice to see a judge take control of the situation. Based on previous rulings, Judge Leon is not likely to become loopy, and seems aware of practicalities:
Quote:
from above
.... he said he would not go too far to intrude on operations of the Navy facility there: “It’s a military base,” he said, “it’s not Vegas.”
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Torture as a Federal Tort Claim ?
This brings in another aspect of "war crimes".
Quote:
Detainee torture issue taken to Court
Friday, August 22nd, 2008 5:29 pm | Lyle Denniston.
.....
UPDATE Monday a.m. The case of Rasul v. Myers has now been assigned docket number 08-235.)
In the first move to put claims of torture of Guantanamo detainees before the Supreme Court, lawyers for four Britons formerly held at the Navy prison in Cuba on Friday asked the Justices to overturn a federal appeals court ruling that they had no right to sue Pentagon officials and military officers over the issue.....
The case would give the Justices a chance to rule on whether Guantanamo detainees have any rights under the Constitution beyond the right to challenge their detention in habeas cases, and whether they have any rights under U.S. laws.
The D.C. Circuit Court last Jan. 11 rejected all of the claims of abuse and arbitrary imprisonment, thus scuttling the case. With no dissents noted, the Circuit Court refused on March 26 to rehear the case en banc. The petition in the Supreme Court was filed after attorneys obtained an extension to do so by Friday. ...
The new appeal asks the Justices to rule on three issues:
1. Do the former detainees have a right to sue for “religious abuse and humilation” under the Religious Freedom Restoration Act.? (The Circuit Court found the detainees were not “persons” covered by the Act.)
2. Does the Constitution provide U.S. captives with a constitutional right not to be tortured – or, if there is such a right, was it not established at the time of the mistreatment claimed in this case and thus U.S. offiicials have immunity to lawsuit? (The Circuit Court ruled that detainees have no constitutional rights.)
3. Did the Defense Secretary and senior military officers have the authority to order torture, as coming within the range of their official duties? (The Circuit Court said that any such mistreatment was incidental to officials’ duty in ordering that detainees be interrogated.)
The appeal notes that the Circuit Court had found that “Guantanamo detainees lack constitutioinal rights because they are aliens without property or presence in the United States.” That conclusion, the petition points out, was overturned by the Supreme Court on June 12 in Boumediene v. Bush, recognizing a constitutional right of habeas.
http://www.scotusblog.com/wp/detaine...aken-to-court/
The petition in Rasul, et al., v. Myers, et al., can be found here.
http://www.scotusblog.com/wp/wp-cont...on-8-22-08.pdf
The Circuit Court panel’s decision can be found here.
http://pacer.cadc.uscourts.gov/docs/...1/06-5209a.pdf
A post on SCOTUSblog discussing the Circuit Court panel decision can be read here.
http://www.scotusblog.com/wp/detaine...torture-abuse/
A petition filed does not mean petition granted - most are denied by SCOTUS; and a constitutional right of habeas does not necessarily mean that all constitutional right follow.
Sooner or later SCOTUS will have deal with the issue of whether some constitutional rights belong only to US citizens (cf., St. Paul); that others extend to US subjects as well; and that still others extend to aliens as well (as in the case of habeas).
One does well to remember that this claim (and others) are solely based on the allegations in a complaint - with at most, some affidavit evidence. Hence, they present the worst case scenario against the defendants. A full-blown trial might well result in many or all of the allegations being found lacking.
The same caution applies to the government's charge sheets in DTA and MCA cases. The actual proofs may fail completely (Parhat) or partially (Hamdan).
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DTA Review is Back to What ?
There are presently three tracks that detainee cases are following:
1. Proceedings before Combatant Status Review Tribunals (CSRTs) to determine enemy combatant status under the DTA, with referral to Military Commission trials (if charge sheets are filed); and, in any case, review by the DC Court of Appeals (e.g., Parhat).
2. Proceedings before Military Commissions under the MCA, with a different path of appellate review. In Hamdan, Judge Allred ignored the CSRT determination and decided Hamdan's enemy combatant status de novo.
3. Habeas proceedings in DC Disrtict Court. Some cases are concurrent in all three tracks.
Denniston's analysis below applies to the first set of proceedings (DTA):
Quote:
Circuit Court holds firm on DTA review
Monday, August 25th, 2008 10:40 am | Lyle Denniston
....
The D.C. Circuit Court, turning aside a Justice Department plea to cut back sharply on its review of military decisions to detain individuals at Guantanamo Bay, has put its tough review regime back into effect. In a brief order on Friday (found here), the Court without explanation reinstated its pair of decisions in Bismullah v. Gates (Circuit docket 06-1197). That order thus implied that the Circuit Court did not believe the Supreme Court had undercut the prior Circuit rulings, as the Justice Department had contended.
The Circuit Court’s two Bismullah decisions, on July 20 and Oct. 23 of last year, required the Pentagon and other government agencies to produce a potentially wide array of information about detainees, to make the system of civilian court review work as the panel thought Congress intended in the Detainee Treatment Act of 2005. It was not enough, the panel declared, to have before it only the information that the Pentagon had actually considered — in proceedings before Combatanta Status Review Tribunals. This kind of broad review, the Justice Department contended, threatened harm to national security.
....
Instead, in its order on Friday, the Circuit Court panel, splitting 2-1, simply reinstated its prior rulings, thus restoring them as fully binding mandates on how the DTA process would continue to operate. Circuit Judges Douglas H. Ginsburg and Judith W. Rogers signed the order; Circuit Judge Karen LeCraft Henderson dissented.
The order, however, said nothing about a separate motion the Justice Department has made: that all of the scores of DTA cases be put on hold while the habeas cases proceed in District Court. Presumably, the panel will act on that question separately.
http://www.scotusblog.com/wp/circuit...on-dta-review/
The order is here.
http://www.scotusblog.com/wp/wp-cont...er-8-22-08.pdf
A prior SCOTUSblog discussion is here.
http://www.scotusblog.com/wp/analysi...a-dead-letter/
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The Major War Crimes Trials are Approaching
The name below in part 2 will be familiar to most.
---------------------------------------
The first part deals with the question of Federal judicial control over the MCA system before a final judgment by a MCA military commission. The detainees (minor players) in that case have not been charged. The case does have possible implications for the MCA process.
Quote:
Circuit Court holds firm on DTA review
Monday, August 25th, 2008 10:40 am | Lyle Denniston
....
UPDATE 3:30 p.m. There have been other developments in detainees’ cases; they are discussed in the continuation of the post below.
.....
1. A hearing scheduled in U.S. District Court Tuesday morning could provide a major test of whether Congress has taken away from the federal courts any authority to oversee the war crimes trial system before there are final verdicts. Thomas F. Hogan, a senior District judge who is coordinating detainees’ habeas cases in District Court, will hold a hearing at 11 a.m. on a plea by attorneys for two Guantanamo prisoners to prevent military prosecutors from meeting with the captives without their lawyers’ consent.
http://www.scotusblog.com/wp/circuit...on-dta-review/
In an ordinary criminal case, this one would be a no-brainer once the defendant lawyers-up. As noted above, the Federal courts are being forced to deal with the issue of who (measured by status) is entitled to certain constitutional rights.
Detainees' motion brief here.
http://www.scotusblog.com/wp/wp-cont...ion-7-2-08.pdf
Government's brief here.
http://www.scotusblog.com/wp/wp-cont...ari-7-8-08.pdf
Detainees' reply here.
http://www.scotusblog.com/wp/wp-cont...ly-7-10-08.pdf
Note that, if the detainees themselves had a trial pending before a MCA commission, the Federal judge would have a simple answer: don't ask me; ask your military judge for a protective order.
--------------------------------
From the same source as above, we have the five accused man-eaters coming to bat:
Quote:
2. In a new development affecting the war crimes prosecution of five individuals accused of taking part in the 9/11 attacks — including alleged mastermind Khalid Sheikh Mohammed, defense lawyers asked for added time to file legal motions. Under a present schedule, such motions would be due on Friday of this week. The attorneys asked that the deadline be put off until Nov. 25, contending that the cases that could lead to the death penalty for each of the five accused are so complex — and lawyers’ access to the clients is so restricted — that counsel cannot mount an adequate defense in the time available.
KSM's motion (3+MB) is here.
http://www.aclu.org/pdfs/safefree/us...nforrelief.pdf
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Manuf (the Iraqi case) and the Uighurs
This is not Mr. Parhat himself, but the rest of the Uighurs
Quote:
Analysis: The meaning of Munaf
Tuesday, August 26th, 2008 12:54 pm | Lyle Denniston
....
Analysis
When the Supreme Court on June 12 found a new constitutional right for Guantanamo Bay detainees, another decision on the same day had little chance of being widely noticed even though it, too, involved detainees’ rights. That ruling [Manuf], in a pair of consolidated cases, focused on prisoners the U.S. military holds in Iraq, not at the U.S. Navy prison compound on the island of Cuba.
....
The point [meaning of Munaf] is well illustrated by two legal briefs, both filed last Thursday in the D.C. Circuit Court, in a series of cases (led by Kiyemba, et al., v. Bush, et al., Circuit docket 05-5487). These cases involve nine Guantanamo detainees — all members of a Chinese Muslim minority (the Uighurs) that has for years suffered persecution in China; these nine were captured elsewhere after they had relocated. ....
......
The government has 167 appeals in the Circuit Court in other cases awaiting the outcome of the Kiyemba litigation, and detainees have three other such appeals now pending. All of them turn primarily upon a single issue: do federal judges have any authority to issue orders of any kind to limit or delay the Defense and State Departments from sending a detainee to another country, after the Pentagon decides not to keep an individual confined at Guantanamo? It is a question that could touch on major constitutional issues, as well as on the meaning of federal laws.
http://www.scotusblog.com/wp/analysi...ning-of-munaf/
The brief for the Uighur detainees is here.
http://www.scotusblog.com/wp/wp-cont...ef-8-21-08.pdf
The government's brief is here.
http://www.scotusblog.com/wp/wp-cont...ba-8-21-08.pdf
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Judge Leon Forges On
This decision by Judge Leon favors the government (and also accords with the DTA and MCA). It is the same standard applied by Judge Allred in Hamdan.
Quote:
An easier standard for detention
Wednesday, August 27th, 2008 3:10 pm | Lyle Denniston ...
......
NOTE: In a hearing Wednesday on procedural issues in detainee cases in his Court, U.S. District Judge Richard J. Leon expressed concern about the need to have most of the hearings in those cases behind closed doors, because of the use of classified evidence. .... [AP link below]
.....
A federal judge who is moving ahead rapidly to implement a Supreme Court decision and decide whether the Pentagon may continue to hold detainees at Guantanamo Bay decided on Wednesday to require only the lowest level of proof to justify further captivity.
In a case management order that applies to the 24 habeas cases before him, U.S. District Judge Richard J. Leon ruled that it would be up to the government to prove “the lawfulness of detention” case by case, but need do so only by a “preponderance of the evidence.”
......
Judge Leon left himself some room to second-guess the government, not only on the weight of its evidence to support detention, but also on the core issue of what is a “lawful” detention. Each government report offering reasons for an individual’s captivity, the judge said, must “set forth the government's legal basis for detaining” that captive. If it offers evidence that he is an “enemy combatant,” it “must provide the definition of enemy combatant upon which it relies.” .....
http://www.scotusblog.com/wp/an-easi...for-detention/
The case management order is here.
http://www.scotusblog.com/wp/wp-cont...er-8-27-08.pdf
AP news account of the hearing.
http://hosted.ap.org/dynamic/stories...MPLATE=DEFAULT
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Discovery of government evidence in DTA cases
The government is being forced to take action - one way or the other - on the DC Circuit's restoration of its discovery orders in the "Bismullah" cases. In an ordinary criminal case, all this would be a no-brainer under the Brady doctrine. Here, it becomes a Supreme Court case - well, not quite yet.
Quote:
U.S. to try again to curb DTA review
Wednesday, August 27th, 2008 4:02 pm | Lyle Denniston ....
....
UPDATE Friday afternoon
In a move sure to draw government opposition, lawyers for seven Guantanamo Bay detainees asked the D.C. Circuit Court on Friday to order the Justice Department and Pentagon to produce within ten days the complete files, including any secret data, that it has about those individuals. In a motion to compel, the lawyers relied upon the Circuit Court’s reinstated Bismullah v. Gates decisions of last year. In fact, the motion was filed in the Bismullah case itself (Circuit docket 06-1197), and six other appeals by detainees, all challenging their captivity under the Detainee Treatment Act of 2005. The government, the motion argued, has said it was busy compiling these records, and thus should be able to produce them quickly — initially, in classified form, in order to speed access to them for detainees’ lawyers. The Justice Department is likely to oppose this new request, as it goes forward with efforts to undo the Bismullah ruling .....
....
The Justice Department is discussing a return to the Supreme Court, to ask it to curb the authority of a federal appeals court to engage in a wide-ranging review of military decisions to detain prisoners at Guantanamo Bay. The plans, reportedly conveyed to attorneys for detainees, remain subject to approval by the U.S. Solicitor General, it is understood. An initial attempt may be made to get the lower court, the D.C. Circuit Court, to react first.
Under discussion are ways to block, and ultimately to get overturned, the D.C. Circuit order that has revived its broad review mandate. ....
http://www.scotusblog.com/wp/us-to-t...rb-dta-review/
The detainees' motion to compel discovery is here
http://www.scotusblog.com/wp/wp-cont...el-8-29-08.pdf
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Judge Leon gets into the "Bismullah" action
This guy is earning his pay - and making the lawyers work. I love it.
Quote:
UPDATE: Bismullah effect spreading?
Friday, August 29th, 2008 1:51 pm | Lyle Denniston.....
.....
UPDATE
Even as the Justice Department makes plans to try to get higher courts to overturn a broad judicial mandate to produce what it knows about Guantanamo Bay detainees (discussed in the post just below, updated Friday), it is now facing the prospect that the obligation may also extend to detainees’ cases in U.S. District Court. In one of the leading groups of habeas cases, U.S. District Judge Richad J. Leon on Thursday called for new briefs on this controversy.
.....
On Wednesday, lawyers for six detainees — the same six that were involved in the Supreme Court’s ruling June 12 on detainees’ habeas rights (Boumediene v. Bush) — asked Judge Leon to use the Bismullah decision as a basis for ordering the government “to search for and produce” all information that might favor the detainees’ challlenge to captivity — and perhaps “all information” about detainees — for review in habeas proceedings. .....
....
Judge Leon reacted on Thursday, telling each side it could file a new brief on the issue if it wished, with any such brief due next Wednesday. [... but judge, it's Labor Day Weekend ... So, labor ...]
.....
Judge Leon has already reacted somewhat cautiously to a request of detainees’ lawyers to force the government to seek out information that would help the detainees’ cause. In his “case management order” this week, the judge said the government would be obliged to produce information that helps detainees only if it is contained in the materials government lawyers are preparing to submit in habeas cases.
It is not clear, however, that Judge Leon, at the time he issued that order on Thursday, had considered the detainees’ counsel’s new plea — filed the day before — to expand the government disclosure obligation under Bismullah.
http://www.scotusblog.com/wp/update-...ect-spreading/
The detainees' “notice of subsequent authority” is here.
http://www.scotusblog.com/wp/wp-cont...ne-8-26-08.pdf
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Is the DOJ about to quit - or should it be fired ?
This is a confusing news item - or is it that DOJ and its bosses simply do not know what to do. I expect there is some political spin here; but it may indicate that the DOJ system is broken. Draw your own conclusions. Next week will bring some more developments - one can fairly infer.
Quote:
New DTA, habeas troubles
Friday, August 29th, 2008 10:36 pm | Lyle Denniston.....
.....
The Justice Department, frustrated in its ability to get free of one level of court review of Guantanamo Bay detainee cases, and unable at the other level to keep to is own schedule for turning out reports to justify detention, has taken two significant steps to try to cope. It has vowed to shut down its part in the D.C. Circuit Court’s review of detainee challenges under the Detainee Treatment Act of 2005, and it has formally asked for more time to file in District Court its answers to challenges pending there under the Supreme Court’s Boumediene v. Bush decision.
These developments emerged as top Justice Department officials, joined by Pentagon and intelligence officials, vowed Friday to continue to try to help the courts process some 250 District Court habeas cases that federal judges have insisted on resolving as soon as possible. Officials have made it clear that they consider those cases to have the most claim on the government’s time and resources, and equally clear that they will do no more than they are actually compelled to do on the DTA cases in the Circuit Court.
The Supreme Court, in Boumediene, stressed the importance of moving rapidly with the long-pending habeas cases, and said the detainees did not have to attempt first to ge the Circuit Court to act on their DTA appeals. But the Court also said that the DTA process would remain “intact” and it did not prevent detainees’ lawyers from pursuing that routine, if they chose — as a number have now done.
....
Justice Department lawyers, in a variety of ways in court and out, have made efforts to put the DTA process on hold so that all government agencies involved could focus on the habeas cases. After detainees’ lawyers refused to go along, the Department hardened its position, and now will not supply any information demanded by detainees’ counsel for use in the DTA process. (A Department lawyer outlined that view in this document.) This has set up a tug-of-war in the Circuit Court, and it is not clear when the Circuit Court will try to sort it out.
.....
Meanwhile, on Friday, in a series of filings in District Court, the Justice Department told Senior Judge Thomas F. Hogan that the government was unable to meet a Friday deadline for producing 50 responses to detainees’ habeas challenges. That was a schedule Department lawyers suggested, and Judge Hogan then embraced. ....
http://www.scotusblog.com/wp/new-dta-habeas-troubles/
The bottom line government position is this:
Quote:
We will not be providing any further record materials at this time. As you know, our motion to hold the entire DTA case in abeyance (including any obligation to produce any record material) is still pending. The pendency of that motion stays any obligation to provide any record material to you. Moreover, we are examining whether to seek further review of the panel's ruling in Bismullah and may seek to overturn the latest order.
Finally, I would note that, under Bismullah II, the record at issue is the historic "government information" actually reviewed by the recorder. The Bismullah II Court recognized that, for good reason, the government may not be able to identify those materials. See Bismullah v. Gates, 503 F.3d 137, 141 (D.C. Cir. 2007) (quoting the Government filing, "[a]t the time, Recorders had no reason to believe that DoD would be required to produce (or explain post hoc) what was not provided to the Tribunal"); ibid. ("We note in the Government's defense that CSRTs made hundreds of status determinations, including those under review in the present cases * * * without knowing * * * the scope and nature of judicial review"). Accordingly, the panel expressly held that the Government could elect not to file the record at all and instead remand the case to the agency. Ibid. Our prior court filings explain that the Government may pursue the remand option if the Bismullah decision is not overturned.
Given all of these factors, we will not be providing you the "government information" or any further record material at this time.
The above document is mentioned in the 2nd to the last paragraph of Lyle's article above.
Various other government position papers are here.
http://www.scotusblog.com/wp/wp-cont...ef-8-29-08.pdf
http://www.scotusblog.com/wp/wp-cont...ns-8-29-08.pdf
http://www.scotusblog.com/wp/wp-cont...cl-8-29-08.pdf
http://www.scotusblog.com/wp/wp-cont...cl-8-29-08.pdf
Quote:
from Gen. Hayden's declaration
19. The CIA did not receive the first draft factual returns [from DOJ] until 12 August 2008, and received the last batch of factual returns [from DOJ] as recently as 25 August 2008. Nevertheless, the CIA managed to complete its review of a significant number of returns by the 29 August 2008 deadline.
(IMO) The only people who are looking good here are some of the judges who took the bull by the horns and did what they are paid to do - military judge Allred and Federal judge Leon being two examples, in my book.
-
So, do I see a couple of things happening?
1) The rather strange expectation that Guatanamo would keep prisoners from accessing the United States courts system (an interesting statement by itself) is being systematically dismantled?
2) Is the inaction or stagnation evolving into a cascading failure of the prosecution or was that a foregone conclusion built upon the rules of engagement?
2.b) Is it possible that the administrative/military pseudo judicial process has resulted in some enthusiasm by judges to dismantle that process?
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Selil, great questions all ...
and questions that should not be answered too quickly. In short, I need a bit of time to think about them - and to look at the cases I've downloaded and referenced. Might also look at a book or two. We've been here before - bout 140 years ago as I reckon it.
Will get back with a memo. Maybe tomorrow. I posted too much yesterday, here and on another discussion board. My eyes need a rest.
Cheers.
Mike
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Memo to Selil and Interested Parties (Question 1)
Quote:
from Selil
1) The rather strange expectation that Guatanamo would keep prisoners from accessing the United States courts system (an interesting statement by itself) is being systematically dismantled?
The answer to this question is a qualified "no"; in part, because the question contains a flawed factual premise. Here is my explanation.
The DTA and MCA (as they are being applied) do not prohibit ultimate access to an Article III Federal court; but they do limit that access to specific courts and time frames. Because the DTA and MCA have different purposes, they have to be analysed separately as they stand (parts I and II) - and then analysed in light of the separate lines of habeas cases that are in process.
I will use some comparisons from domestic law enforcement here, which though not totally on point have been helpful to me in removing some of the mystery from these statutes and procedures. These cases, of course, involve further complications because of classified evidence and the interplay of international law and domestic law. However, our judicial system has a long history of dealing with classified evidence and protecting national security interests.
It also (because of our federal system) has a long history of determining choices of applicable law where more than one set of laws is involved - the law course known in my student days as Conflict of Laws; and of determining the appropriate intereplay between the Federal courts, the state courts and administrative courts - the law courses known in my student days as Federal Courts and the Federal System, and Review of Administrative Decisions.
The detainee cases, for the most part, factually involve situations which in domestic law enforcement fall under the generalized heading of unlawful possession, and sometimes use, of firearms and explosive devices (under the latter heading, murder, attempted murder, etc.), where the detainee is alleged to be either a principal or accomplice. They also may involve elements of run of the mill criminal conspiracies (X was part of a conspiracy with A, B and C to supply arms to the Taliban); and of broader conspiracies (X was a member of AQ and was involved in its A, B, C, D operations - e.g., KSM). The latter type of charge is more akin to a RICO prosecution.
I am dividing this reply in series of posts; otherwise, it will become unmanageable in the editor.
I have also quoted extensively from the statutes - that way you can decide what the law is & not what I say it is.
-
I. The DTA Procedure and Factual Reviews (part 1)
A. The Statutory Framework
The DTA procedures are laid out in the 2006 DTA, which was part of the Katrina Relief Act, Public Law 109-148, 109th Congress. Like most statutes, it provides a construction clause, which in this situation could be something of a de-construction clause:
Quote:
SEC. 1002
(c) Construction.--Nothing in this section shall be construed to affect the rights under the United States Constitution of any person in the custody or under the physical jurisdiction of the United States.
but also adds, in its amendment of 28 USC 2241, the folowing:
Quote:
(f) Construction.--Nothing in this section shall be construed to confer any constitutional right on an alien detained as an enemy combatant outside the United States.
Thus, the DTA act was intended to be "constitutional rights neutral" - nothing given, nothing taken away.
The act goes on, in a manner not that foreign to administrative review processes, to provide the DoD with authority to establish rules and regulation for the administrative adjudicatory bodies:
Quote:
SEC. 1005
(a) Submittal of Procedures for Status Review of Detainees at Guantanamo Bay, Cuba, and in Afghanistan and Iraq.--
(1) In general.--Not later than 180 days after the date of the enactment of this Act, the Secretary of Defense shall submit to the Committee on Armed Services and the Committee on the Judiciary of the Senate and the Committee on Armed Services and the Committee on the Judiciary of the House of Representatives a report setting forth--
(A) the procedures of the Combatant Status Review Tribunals and the Administrative Review Boards established by direction of the Secretary of Defense that are in operation at Guantanamo Bay, Cuba, for determining the status of the detainees held at Guantanamo Bay or to provide an annual review to determine the need to continue to detain an alien who is a detainee; and
(B) the procedures in operation in Afghanistan and Iraq for a determination of the status of aliens detained in the custody or under the physical control of the Department of Defense in those countries.
The act (also in SEC 1005) also provides for review within the DoD by a designated official:
Quote:
(2) Designated civilian official.--The procedures submitted to Congress pursuant to paragraph (1)(A) shall ensure that the official of the Department of Defense who is designated by the President or Secretary of Defense to be the final review authority within the Department of Defense with respect to decisions of any such tribunal or board (referred to as the ``Designated Civilian Official'') shall be a civilian officer of the Department of Defense holding an office to which appointments are required by law to be made by the President, by and with the advice and consent of the Senate.
Finally, the act in SEC 2005(e)(2) provides for review of DTA determinations by the DC Circuit Court of Appeals, giving some leeway for interpretation.
Quote:
(e) Judicial Review of Detention of Enemy Combatants.--
.....
(2) Review of decisions of combatant status review tribunals of propriety of detention.--
(A) In general.--Subject to subparagraphs (B), (C), and (D), the United States Court of Appeals for the District of Columbia Circuit shall have exclusive jurisdiction to determine the validity of any final decision of a Combatant Status Review Tribunal that an alien is properly detained as an enemy combatant.
(B) Limitation on claims.--The jurisdiction of the United States Court of Appeals for the District of Columbia Circuit under this paragraph shall be limited to claims brought by or on behalf of an alien--
(i) who is, at the time a request for review by such court is filed, detained by the Department of Defense at Guantanamo Bay, Cuba; and
(ii) for whom a Combatant Status Review Tribunal has been conducted, pursuant to applicable procedures specified by the Secretary of Defense.
(C) Scope of review.--The jurisdiction of the United States Court of Appeals for the District of Columbia Circuit on any claims with respect to an alien under this paragraph shall be limited to the consideration of--
(i) whether the status determination of the Combatant Status Review Tribunal with regard to such alien 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 and allowing a rebuttable presumption in favor of the Government's evidence); and
(ii) to the extent the Constitution and laws of the United States are applicable, whether the use of such standards and procedures to make the determination is consistent with the Constitution
and laws of the United States.
(D) Termination on release from custody.--The jurisdiction of the United States Court of Appeals for the District of Columbia Circuit with respect to the claims of an alien under this paragraph shall cease upon the release of such alien from the custody of the Department of Defense.
We can summarize the DTA procedure fairly simply.
1. The sole factual and legal issue (one of status) is whether the alian detainee is an "enemy combatant". I am leaving aside for now the substantive issues surrounding the meaning of that term.
2. That determination is made by a Combatant Status Review Tribunal (CSRT), subject to review by an Administrative Review Board (ARB) and, within DoD, by the Designated Civilian Official (DCO).
3. Finally, review by a Article III court is vested in the United States Court of Appeals for the District of Columbia Circuit.
On its face, there seems to me no question that the DTA procedure, if properly applied, would comport with fundamental due process rights under the US Constitution (which is the critical question); and also with the same concepts under the international and comparative laws that I believe are relevant. It is different from what we see in our domestic criminal justice system - but different does not necessarily mean unconstitutional.
-
I. The DTA Procedure and Factual Reviews (part 2)
B. The Paperwork at Issue
The DTA is of general application to all alien detainees, whether at Gitmo or in Iraq or Afghanistan. It represents an initial stage in the process (and for those detainees not charged under the MCA, the final stage). The closest domestic law enforcement analogy is the arrest and initial incarceration phase (police investigation, arrest warrant and affidavit before a magistrate, jail booking).
So, the DTA paperwork should, if properly done, reflect similar features. Many who are reading this are very familiar with the domestic law paperwork, so I will not dwell on that. Police investigative reports (like everything else) may be good, bad or indifferent. My own experience has generally been positive - they nail down the facts of the case, the witnesses, the crime scene, accused's admissions, technical evidence, etc. Of course, certain aspects have to be developed as one moves to the charging stage and into preliminary and trial stages - in MI, by complaint, preliminary examination (usually a bind-over), information, pre-trial motion practice and trial (followed by conviction and hanging - not really, but just checking to see if you are still awake).
For those familiar with domestic law enforcement, I think you will find - if you look at the actual DTA paperwork - that it is not up to the standards set by our police agencies. That is my opinion after after having downloaded (from the DoD webpages) and reviewed some of it. That is rather surprising since the government has had years to prepare this preliminary paperwork.
The reversal in Parhat of the CSRT determination (total lack of evidence), and Judge Allred's felt need to re-determine de novo Hamdan's status as an enemy combatant (he found that status based on the evidence he required to be presented), support my opinion about DTA paperwork.
The skeptic in me sends up a red flag - does the government really have evidence against many of these detainees that would meet the probable cause test which we are so used to in obtaining an arrest warrant - or, in making an arrest without warrant ?
That is, of course, the question being asked by the detainees' attorneys in the "Bismullah" discovery cases. That there should be some discovery of the evidence used to make the CSRT determination seems to me to be a no-brainer - including exculpatory evidence if it exists. The government seems to think differently. The issue is whether the Brady discovery doctrine (Brady v Maryland, from the early 60's) is a fundamental due process rule, since its purpose is to guard against convicting an innocent person.
We could live without Miranda and many of the various search and seizure rules requiring exclusion of credible evidence because of technical errors (the constable has blundered, so the guilty must go free). In fact, we lived under the "totality of circumstances" exclusionary concept for almost 200 years without losing the integrity of our judicial system. The Brady doctrine (applied with some common sense) is of a different order of magnitude.
The "Bismullah" requests also involve requests for discovery of relevant evidence not used in the CSRT determinations - which the government also opposes.
It is interesting that, in SEC 1005(a) of the DTA, we do find a "new evidence" requirement:
Quote:
(3) Consideration of new evidence.--The procedures submitted under paragraph (1)(A) shall provide for periodic review of any new evidence that may become available relating to the enemy combatant status of a detainee.
That provision is one factor in the "Bismullah" requests for discovery of "government information"
-
II. The MCA Procedure and Commission Adjudications
I am not going to dwell on the MCA and its commission procedure. MCA is very similar to the courts martial process (albeit with some shortcuts). We have seen one complete trial (Hamdan) under that statute. The military has handled that process well, in my opinion. So, I will address only the provisions for review by Article III courts.
The DTA act in SEC 2005(e)(2) provides for review of MCA commission adjudications by the DC Circuit Court of Appeals, again giving some leeway for interpetation.
Quote:
(e) Judicial Review of Detention of Enemy Combatants.--
.....
(3) Review of final decisions of military commissions.--
(A) In general.--Subject to subparagraphs (B), (C), and (D), the United States Court of Appeals for the District of Columbia Circuit shall have exclusive jurisdiction to determine the validity of any final decision rendered pursuant to Military Commission Order No. 1, dated August 31, 2005 (or any successor military order).
(B) Grant of review.--Review under this paragraph--
(i) with respect to a capital case or a case in which the alien was sentenced to a term of imprisonment of 10 years or more, shall be as of right; or
(ii) with respect to any other case, shall be at the discretion of the United States Court of Appeals for the District of Columbia Circuit.
(C) Limitation on appeals.--The jurisdiction of the United States Court of Appeals for the District of Columbia Circuit under this paragraph shall be limited to an appeal brought by or on behalf of an alien--
(i) who was, at the time of the proceedings pursuant to the military order referred to in subparagraph (A), detained by the Department of Defense at Guantanamo Bay, Cuba; and
(ii) for whom a final decision has been rendered pursuant to such military order.
(D) Scope of review.--The jurisdiction of the United States Court of Appeals for the District of Columbia Circuit on an appeal of a final decision with respect to an alien under this paragraph shall be limited to the consideration of--
(i) whether the final decision was consistent with the standards and procedures specified in the military order referred to in subparagraph (A); and
(ii) to the extent the Constitution and laws of the United States are applicable, whether the use of such standards and procedures to reach the final decision is consistent with the Constitution and laws of the United States.
The MCA also provides for review of military commission adjudications, in two stages. First, we have the Court of Military Commission Review:
Quote:
§ 950f. Review by Court of Military Commission Review
(a) ESTABLISHMENT.—The Secretary of Defense shall establish a Court of Military Commission Review which shall be composed of one or more panels, and each such panel shall be composed of not less than three appellate military judges. For the purpose of reviewing military commission decisions under this chapter, the court may sit in panels or as a whole in accordance with rules prescribed by the Secretary.
(b) APPELLATE MILITARY JUDGES.—The Secretary shall assign appellate military judges to a Court of Military Commission Review. Each appellate military judge shall meet the qualifications for military judges prescribed by section 948j(b) of this title or shall be a civilian with comparable qualifications. No person may be serve as an appellate military judge in any case in which that person acted as a military judge, counsel, or reviewing official.
(c) CASES TO BE REVIEWED.—The Court of Military Commission Review, in accordance with procedures prescribed under regulations of the Secretary, shall review the record in each case that is referred to the Court by the convening authority under section 950c of this title with respect to any matter of law raised by the accused.
(d) SCOPE OF REVIEW.—In a case reviewed by the Court of Military Commission Review under this section, the Court may act only with respect to matters of law.
From there, one moves to the DC Circuit and the Supreme Court:
Quote:
§ 950g. Review by the United States Court of Appeals for the District of Columbia Circuit and the Supreme Court
(a) EXCLUSIVE APPELLATE JURISDICTION.—(1)(A) Except as provided in subparagraph (B), the United States Court of Appeals for the District of Columbia Circuit shall have exclusive jurisdiction to determine the validity of a final judgment rendered by a military commission (as approved by the convening authority) under this chapter.
(B) The Court of Appeals may not review the final judgment until all other appeals under this chapter have been waived or exhausted.
(2) A petition for review must be filed by the accused in the Court of Appeals not later than 20 days after the date on which—
(A) written notice of the final decision of the Court of Military Commission Review is served on the accused or on defense counsel; or
(B) the accused submits, in the form prescribed by section 950c of this title, a written notice waiving the right of the accused to review by the Court of Military Commission Review under section 950f of this title.
(b) STANDARD FOR REVIEW.—In a case reviewed by it under this section, the Court of Appeals may act only with respect to matters of law.
(c) SCOPE OF REVIEW.—The jurisdiction of the Court of Appeals on an appeal under subsection (a) shall be limited to the consideration of—
(1) whether the final decision was consistent with the standards and procedures specified in this chapter; and
(2) to the extent applicable, the Constitution and the laws of the United States.
(d) SUPREME COURT.—The Supreme Court may review by writ of certiorari the final judgment of the Court of Appeals pursuant to section 1257 of title 28.
So, the DTA and MCA (as they are being applied) do not prohibit ultimate access to an Article III Federal court; but they do limit that access to specific courts and time frames.
That BTW, is not much different from the situation where a state court defendant (regardless of his Federal law claims) must proceed through the state court system - in MI, District Court, Circuit Court, Court of Appeals, Supreme Court - before seeking review by SCOTUS (which is rarely granted).
The state defendant with Federal law claims may also seek habeas relief in Federal District Court, but that relief is limited in both scope and time frame.
It is in the area of habeas review that the DTA and MCA limitations have been dismantled in part.
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OK, so here is my question based on the above. It would seem that there is fundamental expectation that Guatanamo is considered to NOT be United States soil and the respective borders of the United States for purposes of jurisdiction are expected to be the International borders. However, in several cases the embassies and bases have been used to create cases that were required to be on United States soil even if in a foreign land (for example possession of illegal substances, sex crimes (not covered by the host land, and DMCA type violations). So doesn't it seem peculiar to see it being used subjectively as a convenience "protocol"?
If you are ever in da region (South East Chicago) I'll buy you a beverage or nine. Now you have me wanting to attend law school when I finish my PhD.
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UK court judgement on G-Bay prisoner
On 22nd August 2008 The Guardian reported on a high court judgement on a Guantanamo Bay prisoner, who is awaiting trial and I select two key points:
The judgment contains two particularly stinging passages. The judges said Witness B worked with the US "to the extent of making it clear to [Mohamed] that the United Kingdom government would not help [him] unless he cooperated fully with the United States authorities". They added: "The relationship of the United Kingdom government to the United States authorities in connection with [Mohamed] was far beyond that of a bystander or witness to the alleged wrongdoing."
The weblink is: http://www.guardian.co.uk/uk/2008/au...ity.guantanamo
The court judgement, 75 pages: http://image.guardian.co.uk/sys-file...full210808.pdf
davidbfpo
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III. Habeas and Other Federal Court Actions.
The DTA SEC 2005(e)(1) amendment to 28 USC 2441 also limits Federal court jurisdiction in two ways:
Quote:
(1) In general.--Section 2241 of title 28, United States Code, is amended by adding at the end the following:
``(e) Except as provided in section 1005 of the Detainee Treatment Act of 2005, no court, justice, or judge shall have jurisdiction to hear or consider--
``(1) an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba; or
``(2) any other action against the United States or its agents relating to any aspect of the detention by the Department of Defense of an alien at Guantanamo Bay, Cuba, who--
``(A) is currently in military custody; or
``(B) has been determined by the United States Court of Appeals for the District of Columbia Circuit in accordance with the procedures set forth in section 1005(e) of the Detainee Treatment Act of 2005 to have been properly detained as an enemy combatant.''.
The MCA also weighs in and limits habeas and other Federal court review:
Quote:
SEC. 7. HABEAS CORPUS MATTERS.
(a) IN GENERAL.—Section 2241 of title 28, United States Code, is amended by striking both the subsection (e) added by section 1005(e)(1) of Public Law 109–148 (119 Stat. 2742) and the subsection (e) added by added by section 1405(e)(1) of Public Law 109–163 (119 Stat. 3477) and inserting the following new subsection (e):
(e)(1) No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.
(2) Except as provided in paragraphs (2) and (3) of section 1005(e) of the Detainee Treatment Act of 2005 (10 U.S.C. 801 note), no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant
or is awaiting such determination.’’.
The habeas limitations in DTA and MCA have fallen to the Boumediene decision, which has been sliced, diced and discussed above. That decision applies to aliens and hinges on the territorial test for the constitutional scope of the habeas remedy. That was a close 5-4 decision.
Note that a different approach was taken in the Manuf case (US citizens held in Iraq) which applied a citizenship test for the constitutional scope of the habeas remedy. The two decisions are not inconsistent. The latter simply says that US citizens can have more rights than aliens. Manuf was a unanimous decision.
Note that Boumediene's majority opinion was far less sweeping than the 1866 decision in Ex Parte Milligan, which involved a US citizen tried in Indiana which was within the theatre of war (it was a military district), but not within a theatre of hostilities at the time. Besides, the Federal courts were very much open for business. In fact, the commander of the Indiana military district (a lawyer as well as a BG) was very much opposed to using a military commission in Milligan's case. He was relieved from his command.
In any event, the Milligan court reached a unanimous result - invalidating Milligan's proceedings in toto. The justices differed 5-4 in their logic; one side by a more radical constitutional interpretation, the other by a more conservative legislative construction.
The opinions in Ex parte Milligan, 71 U.S. 4 Wall. 22 (1866), are here.
http://supreme.justia.com/us/71/2/case.html
While the habeas limitations of the DTA and MCA are gone - note that the scope of the habeas remedies (if any are granted) still remain a work in process - the "other actions" limitations of the DTA and MCA still remain in effect. They are not necessarily unconstitutional because there are many other considerations involved.
The lower court opinions, so far, have been generally respectful of the "other actions" limitations. E.g., Judge Leon's "it's a naval base, not Vegas."
from DTA (in full above)
Quote:
``(2) any other action against the United States or its agents relating to any aspect of the detention by the Department of Defense of an alien at Guantanamo Bay, Cuba, who--
``(A) is currently in military custody; or
``(B) has been determined by the United States Court of Appeals for the District of Columbia Circuit in accordance with the procedures set forth in section 1005(e) of the Detainee Treatment Act of 2005 to have been properly detained as an enemy combatant.''.
from MCA (in full above)
Quote:
(2) Except as provided in paragraphs (2) and (3) of section 1005(e) of the Detainee Treatment Act of 2005 (10 U.S.C. 801 note), no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.’’.
So, to put it in the simplest terms, the courts are not in the process of dismantling DTA and MCA, but they are interpreting those statutes independently of what the government seems to want.
The habeas limitation was, of course, a "contempt of court" for historical reasons - and was punished accordingly. However, affirmation of a constitutional habeas jurisdiction does not mean that jurisdictionn will be used to grant unlimited habeas relief. That is an issue for the coming months and Judge Leon.
Questions 2 and 2b will probably be answered more briefly - since we have this background noise out of the way.
Now, if permitted, I have to pay some Labor Day attention to my wife; who may not be Ann-Margaret, but is a lot better looking than this stuff
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Selil & David
Cross-posted on my last part - shades of Pearl Harbor & the 14-part Japanese mesage.
Quote:
Selil
If you are ever in da region (South East Chicago) I'll buy you a beverage or nine. Now you have me wanting to attend law school when I finish my PhD.
1st sentence - agreed. Also, reciprocal if you get up here (which might be safer). Also, same invitation extended to our UK friend, who hopefully was not Witness B.
As to 2nd sentence, if you are masochist enough, law school should be your pleasure. The actual practice is superior to the schooling.
I'm waiting for the 75 page High Court case to download. Haven't had to read one of those in a while.
As the last sentence of final post indicates, I will return with some sort of answers - sometime this week.
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Binyam Mohamed
I read through Lord Justice Thomas' Opinion, which is quite interesting from a comparative law standpoint; and seems a rather well-written opinion from the standpoint of UK law. I now understand the Norwich case and its requirements to compel 3rd party document disclosure - different from ours, which is usually more direct.
I note that he did not make definitive factual findings confirming BM's allegations; but did find them to be arguable - which was sufficient to support a judgment under Norwich compelling disclosure of the UK government documents. This opinion has to be read carefully as to evidenced facts, alleged facts contested, and alleged facts not contested for lack of knowledge. Lord Justice Thomas makes the appropriate distinctions; the Guardian article was not so circumspect.
According to the NY Times, the UK case may become moot.
Quote:
World Briefing | Europe
Britain: U.S. Acts on Court Files
By RAYMOND BONNER
Published: August 29, 2008
In a reversal, the Bush administration turned over documents that may support allegations by a Guantánamo Bay detainee, Binyam Mohamed, that he was tortured while in American custody in Pakistan in early 2002, a British court disclosed Friday.....
.....
On Wednesday the State Department informed the British court that the documents had been turned over to the Pentagon official who decides whether a Guantánamo case should go to trial. ...
http://www.nytimes.com/2008/08/30/wo...html?ref=world
The MCA charge sheet for Binyam Mohamed is here - his case is linked to Jose Padilla.
http://www.defenselink.mil/news/Nov2...04muhammad.pdf
Wiki Bio
Quote:
Binyam Ahmed Mohamed (Arabic: بنيام محمد) (also described as Benjamin Mohammed, Benyam (Ahmed) Mohammed and Benyam Mohammed al-Habashi) (born 24 July 1978) is an Ethiopian national who is detained in Guantanamo Bay prison. In 1994, Mohamed sought asylum in the UK. He was captured and transported in the frame of the US extraordinary rendition program.....
http://en.wikipedia.org/wiki/Binyam_Ahmed_Muhammad
ACLU Biography of Plaintiff Binyam Mohamed
Quote:
NEW YORK - In July of 2002, Ethiopian native Binyam Mohamed was taken from Pakistan to Morocco on a Gulfstream V aircraft registered with the Federal Aviation Administration (FAA) as N379P. Flight and logistical support services for this aircraft were provided by Jeppesen Dataplan, Inc. In Morocco, Mohamed was handed over to agents of Moroccan intelligence who detained and tortured him for the next 18 months. In 2004, Mohamed was rendered to a secret U.S. detention facility in Afghanistan. Flight and logistical support services for this aircraft, a Boeing 737 business jet, were also provided by Jeppesen. In Afghanistan Mohamed was tortured and inhumanely treated by United States officials. Later that same year Mohamed was rendered a third time by U.S. officials, this time to Guantánamo Bay, Cuba where he is presently. ....
http://www.aclu.org/safefree/torture...s20070530.html
ACLU Lawsuit vs Boeing Subsidiary
Quote:
ACLU Sues Boeing Subsidiary for Participation in CIA Kidnapping and Torture Flights (5/30/2007)
.....
NEW YORK - The American Civil Liberties Union today filed a federal lawsuit against Jeppesen Dataplan, Inc., a subsidiary of Boeing Company, on behalf of three victims of the United States government's unlawful "extraordinary rendition" program. The lawsuit charges that Jeppesen knowingly provided direct flight services to the CIA that enabled the clandestine transportation of Binyam Mohamed, Abou Elkassim Britel and Ahmed Agiza to secret overseas locations where they were subjected to torture and other forms of cruel, inhuman and degrading treatment. ...
http://www.aclu.org/safefree/torture...s20070530.html
On this one (which might be messy), we will just have to wait to see what the military judge rules - unless the administration decides to dismiss the charges and release BM. From the charge sheet, he fits the junior man-eater category.
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Equitable bills of discovery - US Law
I thought there might be a more direct route than a separate legal action, which might exist under US law to obtain evidence to use in a foreign proceeding similar to the MCA (i.e., if the UK had an MCA and a potential defendant sought discovery of US-held documents). Not so, after looking at some resources here at the office.
Mohammed's charges have not yet been referred to a military commission; but even if they were pending for trial, there might be some question about whether discovery of UK documents could be obtained, since the jurisdiction of the US does not extend to the UK.
The MCA discovery provisions are as follows:
Quote:
‘‘§ 949j. Opportunity to obtain witnesses and other evidence
‘‘(a) RIGHT OF DEFENSE COUNSEL.—Defense counsel in a military commission under this chapter shall have a reasonable opportunity to obtain witnesses and other evidence as provided in regulations prescribed by the Secretary of Defense.
‘‘(b) PROCESS FOR COMPULSION.—Process issued in a military commission under this chapter to compel witnesses to appear and testify and to compel the production of other evidence—
‘‘(1) shall be similar to that which courts of the United States having criminal jurisdiction may lawfully issue; and
‘‘(2) shall run to any place where the United States shall have jurisdiction thereof.
‘‘(c) PROTECTION OF CLASSIFIED INFORMATION.—(1) With respect to the discovery obligations of trial counsel under this section, the military judge, upon motion of trial counsel, shall authorize, to the extent practicable—
‘‘(A) the deletion of specified items of classified information from documents to be made available to the accused;
‘‘(B) the substitution of a portion or summary of the information for such classified documents; or
‘‘(C) the substitution of a statement admitting relevant facts that the classified information would tend to prove.
‘‘(2) The military judge, upon motion of trial counsel, shall authorize trial counsel, in the course of complying with discovery obligations under this section, to protect from disclosure the sources, methods, or activities by which the United States acquired evidence if the military judge finds that the sources, methods, or activities by which the United States acquired such evidence are classified. The military judge may require trial counsel to provide, to the extent practicable, an unclassified summary of the sources, methods, or activities by which the United States acquired such evidence.
‘‘(d) EXCULPATORY EVIDENCE.—(1) As soon as practicable, trial counsel shall disclose to the defense the existence of any evidence known to trial counsel that reasonably tends to exculpate the accused. Where exculpatory evidence is classified, the accused shall be provided with an adequate substitute in accordance with the procedures under subsection (c).
‘‘(2) In this subsection, the term ‘evidence known to trial counsel’, in the case of exculpatory evidence, means exculpatory evidence that the prosecution would be required to disclose in a trial by general court-martial under chapter 47 of this title.
Subsection (d) "Exculpatory Evidence" is the Brady doctrine.
Lord Justice Thomas was fully aware of these provisions, but doubted their direct applicability to the UK.
Possibly, discovery in a foreign country could be obtained more directly by treaty provisions or "letters rogatory" - I have been involved in the those procedures but rarely in 40 years.
Quote:
US DoS - Preparation of Letters Rogatory
......
Summary: Letters rogatory are the customary method of obtaining judicial assistance from abroad in the absence of a treaty or executive agreement. Letters rogatory are requests from courts in one country to the judiciary of a foreign country requesting the performance of an act which, if done without the sanction of the foreign court, could constitute a violation of that country's sovereignty. Letters rogatory may be used in countries where multi-lateral or bilateral treaties on judicial assistance are not in force to effect service of process or to obtain evidence if permitted by the laws of the foreign country. 22 CFR 92.54 provides a definition of letters rogatory.
http://travel.state.gov/law/info/jud...icial_683.html
An equitable bill of discovery seems an alternative remedy. Here is an article on that remedy - which I have never used as a practicing lawyer.
Quote:
The complaint for a pure bill of discovery: a living, breathing modern day dinosaur?
Publication Date: 01-MAR-04
Publication Title: Florida Bar Journal
Format: Online
Author: Morman, Daniel
......
This article examines the ancient equitable remedy known as a pure bill of discovery. A pure bill of discovery is initiated by filing a complaint which seeks relief in the form of discovery. It is usually brought to obtain disclosure of facts within a defendant's knowledge, or of deeds or writings or other things in the defendant's custody, or in the aid of prosecution or defense of an action in some other court. ... Most discovery requirements in cases can be met by using the standard methods available in the rules. Nevertheless, a complaint for a pure bill of discovery can satisfy certain needs that can not be met under the rules....
.....
A complaint must show that the disclosure of facts which it seeks is necessary to enable the plaintiff to maintain his cause of action or defense in a suit pending or about to be brought in another court, and that the cause of action or defense is legally sufficient. ... The particular matters as to which discovery is sought must, of course, be set out clearly and definitely. ....
http://goliath.ecnext.com/coms2/summary_0199-131418_ITM
Think about the British case a bit more. Would it really be mooted if the US documents were disclosed fully ? Are the US documents the same as the Brit documents ?
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Request for sanctions ...
because of the government's refusal to provide discovery in many detainee cases.
Quote:
Detainees: U.S. must be punished for delay
Tuesday, September 9th, 2008 6:59 pm Lyle Denniston
......
In a plea for a stiff rebuke of the federal government, lawyers for Guantanamo Bay detainees on Tuesday asked a U.S. District judge to impose severe sanctions for delays that the attorneys said were of the government’s own making — delays that are already slowing down court review of military detentions. Even as that maneuver unfolded, the government asked another District judge to give it more time and new filing deadlines in other detainee cases — a move likely to meet the same resistance. ....
http://www.scotusblog.com/wp/detaine...hed-for-delay/
The bottom line requested by the detainees is:
Quote:
Response p. 2 (same at pp. 11-12)
....
The Court must do more than tell Respondents to go and sin no more. The Court should order Respondents to adhere to the Scheduling Order. Moreover, to sanction Respondents for violating the August 29, 2008 deadline, and to deter violations of future deadlines, the Court should deny without further consideration all late-filed motions to amend a return (including motions due but not filed by August 29, 2008), unless the Petitioner waives his objection to a late filing. In the case of late-filed original returns, the Court should require Respondents to file within seven days all such returns as were due by August 29, 2008; and if Respondents fail to meet that deadline or any existing future deadline for filing original returns, the Court should impose meaningful sanctions, including appropriate default, evidentiary and/or monetary sanctions. Nothing less will do to ensure Respondents’ future compliance with the Court’s deadlines and protect Petitioners’ rights. ....
http://www.scotusblog.com/wp/wp-cont...ief-9-9-08.pdf
Of course, asking for sanctions does not mean you will get them. So, again we have to wait for the judges to decide the issues.
In an ordinary Federal case, I would not want to be on the wrong side of a judge's scheduling order - especially when I suggested the timetable - and when one of my agency's filed a declaration that I was the cause of the delay.
Note: Judge Leon (a pre-9/11 nominee by a day), for example, has governmental experience, as an attorney in investigations concerning covert operations. See, his official bio (friendly looking guy from the photo) and wiki bio
http://www.dcd.uscourts.gov/leon-bio.html
http://en.wikipedia.org/wiki/Richard_J._Leon
In any event, bad PR for DoJ - again.
PS:- Selil. I haven't forgotten your Gitmo question, which in its own way, raises some important issues about the background and reasoning behind the diverse opinions in Rasul and Boumediene. You have taken me back to the 1890s (the guano island & the Japanese consular court murder cases), the Insular Cases, etc. I am hammering away at something, but it will be long (so people can see what the law is, not what I say it is). Anyway, it will be a new thread here if I feel what I write is worthwhile posting - more reference material for all of these cases.
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Classification of Uighurs & Classified Evidence
First the Uighurs; and then the new classified evidence rules.
Quote:
Detainees seek to attend hearing
Thursday, September 11th, 2008 5:48 pm Lyle Denniston
.....
Lawyers for a group of Chinese Muslims now being held at Guantanamo Bay asked a federal judge on Wednesday to order the Pentagon to take four of the detainees to Washington, D.C., for the hearing on their plea to be released....
...
Judge Urbina has not yet indicated whether he will allow any detainee to be brought to a hearing in his court. Another judge who is moving along rapidly with detainee cases, District Judge Richard J. Leon, has indicated that detainees can only participate in hearings in his court via a telephone hook-up from Guantanamo.
http://www.scotusblog.com/wp/detaine...ttend-hearing/
Detainees' motion is here.
http://www.scotusblog.com/wp/wp-cont...0-7-08-hrg.pdf
As noted in the quote above, Judge Leon has already denied a similar motion for personal presence. Except for affirmation of the habeas jurisdiction, the DC judges have shown a reluctance to interfere with prison administration at Gitmo.
Of more interest is pp.1-2 of the motion, which spells out the four different positions of the government taken on this group of Uighurs as "enemy combatants" or not. Since this .pdf does not allow select text, you will have to open the file and read it. Too long to type out.
Besides Parhat (already in the non-combatant class), 4 more have been stipulated to enjoy that status. A third group of 8 and a fourth group of 4 may have slightly different fact situations. The court ordered the government to put up or shut up by 30 Sep as to the last 12.
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A new ruling defining treatment of classified evidence, and security clearance rules for legal counsel, was issued by Judge Hogan.
Quote:
same source
Meanwhile, Senior District Judge Thomas F. Hogan, who is coordinating most of the detainee habeas cases, on Thursday issued a new order to control how classified information is handled in the cases, and to control arrangements for detainees’ lawyers to meet with them at Guantanamo. It replaces a series of “protective orders” first put in place four years ago.
The 28-page order is here.
https://ecf.dcd.uscourts.gov/cgi-bin...2002cv0828-371
The definition of classified information, and access requirements, are:
Quote:
8. The terms “classified national security information and/or documents,” “classified information” and “classified documents” mean:
a. any classified document or information that was classified by any Executive Branch agency in the interests of national security or pursuant to Executive Order, including Executive Order 12958, as amended, or its predecessor Orders, as “CONFIDENTIAL,” “SECRET,” or “TOP SECRET,” or additionally controlled as “SENSITIVE COMPARTMENTED INFORMATION (SCI),” or any classified information contained in such document;
b. any document or information, regardless of its physical form or characteristics, now or formerly in the possession of a private party that was derived from United States government information that was classified, regardless of whether such document or information has subsequently been classified by the government pursuant to Executive Order, including Executive Order 12958, as amended, or its predecessor Orders, as “CONFIDENTIAL,” “SECRET,” or “TOP SECRET,” or additionally controlled as “SENSITIVE COMPARTMENTED INFORMATION (SCI)”;
c. verbal or non-documentary classified information known to petitioners or petitioners’ counsel; or
d. any document and information as to which petitioners or petitioners’ counsel were notified orally or in writing that such document or information contains classified information.
.....
16. Without authorization from the government, no petitioner or petitioner’s counsel shall have access to any classified information involved in these cases unless that person has done the following:
a. received the necessary security clearance as determined by the Department of Justice Security Officer; and
b. signed the Memorandum of Understanding (“MOU”), attached hereto as Exhibit A, agreeing to comply with the terms of this Protective Order. ...
And, as to counsel's access to a detainee:
Quote:
C. Requirements for Access to and Communications with Detainees
8. Security Clearance.
a. Counsel must hold a valid, current United States security clearance at the Secret level or higher or its equivalent, as determined by appropriate DoD intelligence personnel.
b. Counsel who possess a valid security clearance shall provide, in writing, the date of their background investigation, the date such clearance was granted, the level of the clearance, and the agency that granted the clearance. Access will be granted only after DoD verification of the security clearance.
c. Counsel who do not currently possess a Secret clearance are required to submit an application for clearance to the Department of Justice, Litigation Security Division.
Finally, each person accessing classified information must sign the Exhibit A agreement, which provides in pertinent part:
Quote:
Having familiarized myself with the applicable statutes, regulations, and orders related to, but not limited to, unauthorized disclosure of classified information, espionage and related offenses; The Intelligence Identities Protection Act, 50 U.S.C. § 421; 18 U.S.C. § 641; 50 U.S.C. § 783; 28 C.F.R. § 17 et seq.; and Executive Order 12958; I understand that I may be the recipient of information and documents that belong to the United States and concern the present and future security of the United States, and that such documents and information together with the methods and sources of collecting it are classified by the United States government. In consideration for the disclosure of classified information and documents:
(1) I agree that I shall never divulge, publish, or reveal either by word, conduct or any other means, such classified documents and information unless specifically authorized in writing to do so by an authorized representative of the United States government, or as expressly authorized by the Protective Order entered in the United States District Court for the District of Columbia in the above captioned cases.
(2) I agree that this Memorandum of Understanding and any other non-disclosure agreement signed by me will remain forever binding on me.
(3) I have received, read, and understand the Protective Order entered by the United States District Court for the District of Columbia in the above-captioned cases, and I agree to comply with the provisions thereof.
This 28-page order replaces the prior protective orders entered in 2004. It appears that Judge Hogan is starting the process of gaining control over the situation - i.e., removing possible grounds for the government to refuse or delay discovery of evidence.
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Article Five.
Art. 5. The present Convention shall apply to the persons referred to in Article 4 from the time they fall into the power of the enemy and until their final release and repatriation.
"Noncombatants" fall not under convention period. Neigh Constitutional, nor Geneve.
Ergo, their status is determined by the same laws that govern their adversary, Which under profound wisdom established The Uniformed Code Of Military Justice as an equal act of Justice on both our and their "Soldiers".
In the case of GTMO, it is a military tribunal. The prisoners do not consign to anything whatsoever. No code at all. They are merely Men without a religion, nation, country, or funding entity worth a damn.
To show the world that it is okay to officially recognize this kind of fraud (these prisoners) WOULD be criminal.
Your most profound argument before Justice is that you walked a straight line by what is legally, morally, and Godly true. And easily verifiable as well.
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Detainee Discovery and Classified Data
The battle between the government and the detainees has two fronts - the DC Circuit on DTA cases and the DC District on habeas cases. However, it is resolving itself into one issue - the collision between classified data and application of the Brady discovery doctrine.
Since the government has conceded that it cannot meet the discovery timetable it set, it has had to go to a fallback position.
Quote:
U.S. seeks to escalate detainee delay dispute
Monday, September 15th, 2008 8:11 pm Lyle Denniston
.....
Seeking to head off court-imposed punishment for failing to meet deadlines for filings in Guantanamo Bay detainee cases, the Justice Department on Monday sought to raise the stakes, foreseeing two potential threats to national security if it is sanctioned. ...
....
The core of this new dispute is the simple one of meeting deadlines — in fact, deadlines that the government sought, over detainees’ objections that they were too generous. The government has conceded it has not been able to meet them, and it is seeking relaxation of them until it can try to catch up.
But it has become increasingly apparent that the underlying controversy is over classified information — how much of it there is, who gets to see it, what process should be used to prepare it for court review, what effect will it have on continued detention of prisoners.
http://www.scotusblog.com/wp/us-seek...delay-dispute/
The government's reply in the District Court, seeking relief from the present scheduling order, is here.
http://www.scotusblog.com/wp/wp-cont...ay-9-15-08.pdf
The reply first contains the concession; notes the need to prepare new factual returns; and then eventually reaches its bottom line:
Quote:
(reply, pp. 2, 3, 11)
....
As explained in connection with its Motion for Relief, the Government underestimated the time it would take to accomplish the development and finalization of amended and original factual returns in the pending habeas cases. When it could not meet the benchmark it had initially represented to the Court as attainable, it requested relief from the Court in the form of an additional 30 days to complete the filing of the first 50 returns.....
....
... Petitioners have wrongfully interpreted the Governments’ desire to present the strongest possible case for detention as an admission that the Government now finds the records of the Combatant Status Review Tribunal (“CSRT”) “inadequate” to justify detention. See, e.g., Pet. Opp. at 9 n. 7. The Government’s development of new factual returns, however, recognizes that significant legal changes have occurred since the original CSRTs were done and the original returns were filed, and it admits of the possibility of factual changes regarding the cases against detainees. ...
....
.... Petitioners seek to prevent the Court from considering late-filed amended returns and to allow the Government only seven days to file original returns on pain of default or evidentiary sanctions.7 Imposing such sanctions because the Government was overly optimistic in its estimates of how long it would take to ramp up production of returns would not force Respondents alone to pay the price. It would force the American people to shoulder the burden, either in the form of increased risk of the erroneous release of individuals whom the government has determined are enemies of the United States, or in the form of reckless and inappropriate dissemination of classified information without careful review and vetting by the intelligence agencies charged with protecting American interests....
Most (all) readers in this forum will be concerned about the danger of "inappropriate dissemination of classified information". In assessing that risk, one should go back to Judge Hogan's protective order (cited in post # 86 above), and read the whole thing. Then, draw your own conclusions as to whether the court's order will be adequate to the task.
My broken crystal ball suggests that the DC District judges will probably cut the government some slack on the timing of discovery, but will not be that impressed by the classified data arguement on its merits.
------------------------------
On the DC Circuit front, we have a slightly different government approach.
Quote:
from SCOTUSblog source above
....
Meanwhile, the Justice Department made a new effort in D.C. Circuit Court to shut down at least temporarily that Court’s part in reviewing government detention decisions.....
....
... the Department said in its newest filing that the Circuit Court should put some 190 such detainee cases on hold until after District Court judges resolve the prisoners’ habeas claims. At a minimum, it said, no action should be taken on the motion to compel until after the Circuit Court has decided whether to put the detainee cases aside.
The government's reply filed in the DC Circuit is here.
http://www.scotusblog.com/wp/wp-cont...el-9-15-08.pdf
There, we have this interesting bit of advocacy:
Quote:
(response pp.4-5)
...
As the Government’s abeyance motions explain, holding the DTA cases, such as these, in abeyance is appropriate given the pendency and rapid movement of the habeas litigation. The two types of cases are duplicative. And the Supreme Court in Boumediene directed that habeas move forward "prompt[ly]," while at the same time holding the DTA proceedings to be a constitutionally inadequate substitute for habeas corpus. Boumediene, 128 S. Ct. at 2275. Thus, Judge Hogan has entered an order requiring expedited briefing on case procedures and the production of at least 50 factual returns every month with respect to cases he is coordinating. Scheduling Order, In re Guantanamo Bay Litig., Misc. No. 08-442 (D.D.C. July 11, 2008). Moreover, the Government has additional obligations in the cases pending before Judges Leon and Sullivan. Indeed, Judge Leon recently issued an order scheduling the first merits hearing in a case before him for October 6, 2008. See Scheduling Order, Boumediene ~. Bush, Civ. Case No. 04-1166 (D.D.C. Aug. 27, 2008).
So, while the government is moving in DC District to delay its proceedings, it is moving in DC Circuit to stay its proceedings because the DC District is moving ahead so quickly.
In the government's defense (fair is fair), the response does specify the efforts being undertaken here:
Quote:
(response pp. 5-6)
...
The preparation of factual returns in the habeas cases is an enormous undertaldng. As the Government recently explained to the district court, the Department of Defense has approximately 30 attorneys working exclusively on the habeas litigation (with more to be deployed), and has diverted intelligence personnel to work full-time in support of the habeas litigation. See Respondent’s Motion for Partial and Temporary Relief from the Court’s July 11,2008 Scheduling Order, In Re Guantanamo Bay Litigation, No. 08-442 (filed Aug. 29, 2008), at 4. The Department of Justice has assigned or detailed more than 50 attorneys to producing factual returns and litigating the more than 250 habeas cases, and the CIA presently has more than 50 attorneys, paralegals, subject matter experts, and classification officials involved in the process of reviewing classified factual returns - a necessary step to their submission in the habeas litigation. ... The Government’s resources are finite, and they will not permit it to litigate 190 DTA cases and more than 200 fast-track habeas cases at the same time at the rate ordered by the district courts.
So, a question to those in law enforcement. If your prosecutor's office had roughly 130 attorneys, could it handle some 400 cases (recall these are basically unlawful firearms and explosives cases) on an expedited basis ?
----------------------------------------
I am also aware of the litigation game - known as "graymail" - where the threatened use of classified data, sources and methods, is a tool to force an advantageous settlement or dismissal of charges.
Here is a recent example (not a "War Crimes Case"), where the government is claiming the defendant is doing exactly that. The defendant, on the other hand, claimed the government had improperly influenced the grand jury - that claim was rejected by the judge.
Quote:
News - Channel 8
Ex-CIA Exec Facing Trial Says He'll Expose Agents, Programs
posted 8:58 pm Tue September 09, 2008
McLean, Va.
....
A former top CIA official accused of corruption and fraud is threatening to expose the identities of numerous agents and programs as part of his defense, prosecutors said. ... In a court filing, prosecutors allege that former CIA executive director Kyle "Dusty" Foggo is trying to gum up the works of his trial, scheduled for November, by delving into classified information that is irrelevant to his case.
http://www.news8.net:80/news/stories/0908/552040.html
Many of the filings in the Foggo case have been sealed because of references to classified data. Federal judges do know how to protect classified data.
-
I quit ...
trying to figure out what the DoJ's game plan is.
Yesterday, it seemed to be (based on its responsive briefs) to stay the DC Circuit cases (under DTA); and to obtain more time to file amended reports in the DC District habeas cases (which include both DTA and MCA cases). That was then ... this is now (as of 22:33 tonite).
Quote:
Early test of detention reasons
Tuesday, September 16th, 2008 10:33 pm Lyle Denniston
.....
The Justice Department, in seeking to bolster its claims to continue holding scores of detainees at Guantanamo Bay, has been filing a stack of new reports in court to update its reasons. In fact, it has said it plans to file amended reports in nearly all of the 250 habeas cases now in District Court. ...
http://www.scotusblog.com/wp/early-t...ntion-reasons/
The immediate action is again before Judge Leon, where five detainees are challenging a large submission of amended reports
Quote:
(same source as above)
....
The attorneys sought to bring on that test by asking U.S. District Judge Richard J. Leon, who has about two dozen detainees’ cases in his Court and is moving them rapidly, to strike from court records the massive filing the government made about five Algerians in the case titled Boumediene v. Bush ....
.....
At issue are both the classified and unclassified versions of a 53-page “narrative” of information, plus 134 attached exhibits. The classified version was filed August 22, and a heavily redacted public version was filed Sept. 5. ...
The detainee's main argument is that no government official has signed the documents under oath verifying the truth and reliability of the information. The detainee's motion is here.
http://www.scotusblog.com/wp/wp-cont...ct-9-16-08.pdf
The motion's main thrust is:
Quote:
(motion pp.1, 3, 4)
....
This Court ordered the Government to submit any material it wished to add to its previously filed “return” – i.e., its explanation why the Petitioners were being imprisoned – on or before August 22. Briefing and Scheduling Order, Boumediene v. Bush, No. 04-1166, Dkt. No. 125 (RJL) (D.D.C. July 31, 2008). The Court also ruled that the Government bears the burden of proof to show that Petitioners’ imprisonment is lawful. Case Management Order, Boumediene v. Bush, No. 04-1166, Dkt. No. 142 (RJL) (D.D.C. Aug. 27, 2008).
.....
Although the facts alleged by the Government in support of continued imprisonment are contained in the Narrative, no officer of this Court has attested that the alleged facts are true or have a good-faith basis in fact. The Narrative – the Government’s summation of the reasons why the Petitioners have been and continue to be imprisoned – is unsigned. No one from the Government has put his or her name to the allegations – not the Government’s counsel from the Department of Justice (who signed the cover memo, but not the rest), nor Rear Admiral Thomas, who cautiously declares under penalty of perjury only that the Narrative contains “information” that the Department of Defense used to “establish” and “substantiate [Petitioners’] detention.” Thomas Decl. ¶ 3. Admiral Thomas does not declare under penalty of perjury that the “facts” alleged within the Narrative are, to the best of his knowledge, information, and belief, all true.
Nobody does....
....
Surely someone at the Department of Justice is willing to do that, if these allegations are to be given the weight and credibility that the Government contends are sufficient to justify indefinite military detention. Failure of an officer of the Court to sign the Narrative certainly reinforces Petitioners’ arguments regarding the insufficiency and vagueness of the Government’s allegations.
Therefore, Petitioners respectfully request that the Court order the Government to file a signed Narrative, or a signed certification from counsel of record attesting to the veracity of the unsigned Narrative. If Government counsel will not sign, Petitioners request that the Court strike the Narrative and its accompanying exhibits. [going on to cite various cases striking unsigned pleadings under FRCP Rule 11 and 28 U.S.C. § 2243, the Habeas Act] ...
A large amount of classified information is contained in the government's exhibits (most everything). That data cannot be independently checked for accuracy. Thus, besides the statute and rule, the argument is plausible that someone should stick out his or her neck to sign and swear that, "to the best of his (her) knowledge, information and belief", all factual allegations are true. We shall see what Judge Leon does with this one.
-
Detainee discovery continues on new schedule.
As predicted (in post #88), the government has a added 30 days (from 31 Aug - so really about a week from the order date) to complete presentation of its first 50 submissions - with 50 more to be filed each month thereafter.
Quote:
No punishment for U.S. delay on detainees
Friday, September 19th, 2008 7:15 pm Lyle Denniston
.....
The federal judge overseeing some 200 detainees’ cases on Friday gave the government added time to supply its reasons for holding the prisoners and refused to impose any punishment for delays up to now, but warned that his patience may be growing thin. ...
..... The first 50 such returns are now due by Sept. 30, a month later, and 50 more will be due each month until all have been filed. ...
http://www.scotusblog.com/wp/no-puni...-on-detainees/
The order is here
http://www.scotusblog.com/wp/wp-cont...er-9-19-08.pdf
The opinion explaining the order is here.
http://www.scotusblog.com/wp/wp-cont...in-9-19-08.pdf
The order adds this interesting option for the government - transfer or release of detainees:
Quote:
(order, p.2)
The Court further ORDERS that, pending further order of the Court, the government need not file factual returns or motions to amend factual returns at this time for petitioners approved for transfer or release from the United States Naval Base at Guantanamo Bay, Cuba.
The opinion makes it clear that the schedule is now a mandate:
Quote:
(opinion, pp.5-6)
As it is disappointed in the government’s failure to meet the schedule the Court adopted based in part on the government’s assurances, the Court grants the government’s motion reluctantly. ... But the Court admonishes the government that, in allowing it an additional thirty days to file each set of factual returns in these cases, the Court is not merely setting a “goal” for which the government is to “strive,” ... Rather, the Court is ordering the government to produce at least fifty factual returns by month’s end, followed by at least fifty more each month thereafter until production is complete. Nor is the government’s “doubt that Petitioners’ counsel can respond, and the Court can adjudicate, cases at that pace,” Gov’t Reply 4, a basis on which the government can rely to disobey an order of this Court.
While the Court is not unsympathetic to the government’s current workload and that, since Boumediene was decided a little over three months ago, government “[a]ttorneys and others from multiple agencies have worked long and hard, nights and weekends,” see Gov’t Mot. 10-11, 10 n.3, the government has detained many of these petitioners for more than six years, and the time has come to provide them with the opportunity to fully test the legality of such detention in a prompt, meaningful manner. .....
.....
Review of the public and ex parte declarations assures the Court that the government is now on notice of the time needed “to accomplish the development and finalization of amended and original factual returns in the pending habeas cases,” Gov’t Reply 2. Going forward under the revised schedule resulting from the Court’s granting of its motion, consequently, the government cannot claim as a basis for failing to meet deadlines imposed by this Court that it “simply did not appreciate the full extent of the challenges posed,” Gov’t Mot. 3. Except for good cause shown, therefore, the Court will not tolerate any further delay. ....
Meanwhile, in Judge Leon's court, the first habeas evidentiary hearing is scheduled to begin in 2 weeks. The government has not yet convinced him to extend his timetable.
Quote:
(same SCOTUSblog above)
The Justice Department has made a similar request for more time to file returns in the two dozen cases being handled by a different District judge, Judge Richard J. Leon. That judge had several times told Justice Department lawyers that, if the process was slowed down, he would summon government officials to his courtroom to explain in person.
Judge Leon has yet to rule on the sufficiency of the evidence already submitted - that is, whether it can be unsworn or whether a jurat will be required.
-
Update on Non-Gitmo Cases
There are three cases pending, which have been discussed in prior posts; but which do not involve the DTA and MCA cases involving Gitmo detainees. This is a brief update on them.
--------------------------------------
The Arar and Rasul cases involve claims of civil liability for alleged torture, etc. While the issues are somewhat different in each case, they boil down to which (if any) government officials can be sued in tort for the alleged offenses - none of these cases has been tried.
Ashcroft et al. off the civil liability hook (post # 46)
Quote:
Arar v. Ashcroft
....
Synopsis
Arar v. Ashcroft is a federal lawsuit challenging the rendition of a Canadian citizen to Syria, by the U.S. government, where he was tortured, forced to falsely confess, and released after one year without ever being charged.
.....
Status
On December 9, 2008, oral argument will be heard by the Second Circuit Court of Appeals en banc.
http://www.ccrjustice.org/ourcases/c...ar-v.-ashcroft
Torture as a Federal Tort Claim ? (post # 65)
Quote:
Rasul v. Rumsfeld
....
Synopsis
Rasul v. Rumsfeld is a lawsuit against former Secretary of Defense Donald Rumsfeld on behalf of four former detainees seeking damages for their arbitrary detention and torture while detained at Guantánamo.
.....
Status
On January 11, 2008, the Court of Appeals for the D.C. Circuit dismissed the case. The court affirmed the district court's dismissal of the constitutional and international law claims, and reversed the district court's decision that the Religious Freedom Restoration Act (RFRA) applied to Guantanamo detainees, dismissing those claims as well. On August 22, 2008, the plaintiffs filed a petition for certiorari before the U.S. Supreme Court.
http://www.ccrjustice.org/ourcases/c...ul-v.-rumsfeld
--------------------------------------------
Hamdan & al-Marri Updates (post # 48)
Quote:
Al-Marri v. Pucciarelli
....
President’s domestic detention power tested
Friday, September 19th, 2008 1:30 pm Lyle Denniston
.....
Lawyers for the only detainee seized in the U.S. under presidential order and still in military captivity urged the Supreme Court on Friday to rule that no federal law and no part of the Constitution allows the President to order such detentions.
http://www.scotusblog.com/wp/preside...-power-tested/
This is a re-play of the Civil War case of Ex Parte Milligan, 71 U.S. 2 (1866); except that Al-Marri is a documented alien rather than a US citizen. The outcome will very likely hinge on the legal distinction between the theatre of operations (worldwide, assuming a GWOT), and a theatre of active hostilities (where US courts are not open for business) - and on whether SCOTUS will draw a distinction between US citizens (Milligan) and documented aliens.
-------------------------------------------
Since the issues in these cases are quite distinct from the issues in the Gitmo "War Crimes" cases, I will start new threads for them when I have the time.
-
Hogan - I don't do prison conditions .... part 1
but I can bar transfers that would interfere with my habeas cases.
---------------------------------------------
A while ago, Selil was interested in whether the Federal courts would address prison conditions at Gitmo. I've noted an apparent reluctance by the DC District judges to involve themselves in that area (e.g., Judge Leon's decision not to bring the detainees before him at the habeas hearings he has scheduled).
Now, we do have a decision on this issue from Judge Hogan, as these cases move along and the law becomes clearer as to its outside parameters.
Quote:
UPDATE: Boumediene and judicial powers
Monday, September 22nd, 2008 4:43 pm Lyle Denniston
...
UPDATE: Readers may note that the following contains materials from an earlier post on Monday, titled “Narrow reading of Boumediene.” The following is a complete rewrite to take account of other significant developments on Monday.
....
In those two orders, Judge Hogan gave a narrow interpretation of the Supreme Court’s Boumediene ruling. Hogan found that the Military Commissions Act of 2006 had taken away all authority of federal courts to examine “transfer, treatment, trial, or conditions of confinement” of any captive found by the government to be an “enemy combatant.” The Supreme Court did not nullify that provision in Boumediene, Hogan wrote, so the courts “have no jurisdiction” over detainees’ pleas over the conditions of their imprisonment at Guantanamo. One of the detainees sought access for his lawyers to his medical records and sought a blanket and mattress in his cell at Guantanamo; the other detainee sought uncensored copies of records and staff reports regarding his medical problems — he has had seizures.
http://www.scotusblog.com/wp/narrow-...of-boumediene/
The two orders and opinions, which are identical, are here and here.
https://ecf.dcd.uscourts.gov/cgi-bin...2004cv1254-293
https://ecf.dcd.uscourts.gov/cgi-bin...?2008cv1360-32
The key MCA provision before Judge Hogan is this:
Quote:
(Latif opinion, p. 1)
In relevant part, Section 7 of the Military Commissions Act of 2006 (“MCA”), 28 U.S.C. § 2241(e), provides:
(1) No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.
(2) [N]o court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.
The part in italics (1) was held unconstitutional by SCOTUS in Boumediene. Judge Hogan held that SCOTUS did not intend to hold part (2) unconstitutional; and that it took away his jurisdiction on the two petitions dealing with "detention, transfer, treatment, trial, or conditions of confinement".
Quote:
(Latif opinion, p. 2, 3)
Cognizant of the long-standing rule of severability, this Court, therefore, holds that § 7(a)(2) remains valid and strips it of jurisdiction to hear a detainee’s claims that “relat[e] to any aspect of the detention, transfer, treatment, trial, or conditions of confinement,” 28 U.S.C. 2241(e)(2). See Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 684 (1987) (holding that a court must “refrain from invalidating more of the statute than is necessary whenever an act of congress contains unobjectionable provisions separable from those found to be unconstitutional” (internal alterations and quotations omitted)).
.....
In sum, while the Supreme Court’s decision in Boumediene gives Petitioner the right to challenge the fact of his confinement, 128 S. Ct. at 2262 (“Petitioners, therefore, are entitled to the privilege of habeas corpus to challenge the legality of their detention.”), it says nothing of his right to challenge the conditions of his confinement, id. at 2274 (“[W]e need not discuss the reach of the writ with respect to claims of unlawful conditions of treatment or confinement.”). And MCA § 7(a)(2) extinguishes this Court’s jurisdiction to hear claims relating to such conditions. The Court, therefore, will deny Petitioner’s motion.
This is a logical opinion, based on a conservative (in the non-political sense) approach to statutory construction. It also has the practical advantage to the Federal judge of not becoming the administrator of Gitmo (e.g., "It's a naval base; not Vegas" - Judge Leon).
Lyle Denniston and Marty Lederman differ a bit on the implications of Judge Hogan's order:
Quote:
(Lyle, from above source)
If Judge Hogan’s rulings withstand appeals, they would wipe out many of the claims that detainees have made since Boumediene – challenges to transfers, to transfers without first notifying detainees’ lawyers, to a lack of access to medical care and to their lawyers, to torture or abuse or to other living conditions in the various camps at Guantanamo.....
(Marty, from source below)
Lyle writes ... I think this is not quite right. What Judge Hogan held in the Latif case, fairly unremarkably, is simply that section 7(a)(2) of the MCA strips courts of power to consider GTMO detainees’ claims challenging conditions of confinement and transfers, and that the Supreme Court’s Boumediene decision did not resolve the constitutionality of section 7(a)(2).
Judge Hogan did not address whether and to what extent challenges to conditions or transfers are constitutionally protected (in habeas or otherwise) and, if so, whether section 7(a)(2) is constitutional, because the petitioner did not raise that constitutional argument.
http://www.scotusblog.com/wp/gtmo-co...ansfer-claims/
Marty is technically correct - for some reason, the constitutionality of part (2) was not argued.
Quote:
(Latif opinion, p. 2)
Rather than arguing that MCA § 7(a)(2) is unconstitutional, Petitioner contends ....
So, the constitutionality of part (2) is still an open question - technically.
-
Hogan - I don't do prison conditions .... part 2
--------------------------------------------
Judge Hogan also entered another order, which prohibited the transfer of one of the Gitmo detainees. Based on the redactions (name, place, etc.), the record in that case is largely classified.
We know of the order from a DoJ letter to the DC Circuit, with the redacted order, which is part of the public record in the presently under-appeal case of Kiyemba v. Bush, Nos. 05-5487, 05-5489, here.
http://www.scotusblog.com/wp/wp-cont...er-9-22-08.pdf
The letter (p.1-2) notes:
Quote:
Pursuant to Rule 28(j), Fed. R. App. P., appellants/cross-appellees hereby submit copies of Judge Hogan’s order in In re Guantanamo Bay Detainee Litigation, Misc. No. 08-mc-0442, barring the transfer of a detainee. The order was issued under seal and then released publicly with redactions (including the date of issuance). The redacted-public version is attached.
.....
In light of the district court’s rationale, it appears the district courts are now poised to bar any transfer of a Guantanamo detainee. This reality counsels in favor of this Court’s expeditious resolution of the current appeals. We believe that in this context, if possible, this Court should resolve the key issues as soon as possible after oral argument and, if necessary, issue an order disposing of the issues prior to a full opinion.
The full text of the redacted order seems worthy of quote - if for no other reason than to prove that the Federal court system is capable of protecting classified information:
Quote:
Pending before the Court are Petitioner’s (1) xxxx Motion For A Temporary Restraining Order Enjoining Transfer Of Petitioner To xxxx ("Injunction Motion") and (2) Motion xxxxxxxx.
For the reasons given during the telephonic hearing held on xxxx, the Court ORDERS that Petitioner’s Injunction Motion is GRANTED. Specifically, finding it necessary to protect its jurisdiction over Petitioner’s petition for a writ of habeas corpus, pursuant to its remedial authority under the All Writs Act, 28 U.S.C. § 1651, see Belbacha v. Bush, 520 F.3d 452 (D.C. Cir. 2008) (holding that, notwithstanding Section § 7(a)(2) of the Military Commissions Act of 2006, district court has authority under 28 U.S.C. § 1651 to enjoin transfer to protect its jurisdiction to determine the constitutionality of § 7(a)), the Court temporarily enjoins the government from transferring Petitioner from the United States Naval Base at Guantanamo Bay, Cuba, to xxxx pending the United States Court of Appeals for the D.C. Circuit’s decision in Kiyemba v. Bush, No. 05-5487 (consolidated with Nos. 05-5488, 05-5489, 05-5490, and 05-5492), which is set for oral argument on September 25, 2008.
The Court further ORDERS that Petitioner’s Motion xxxx is GRANTED in part and DENIED in part. Specifically, xxxxxxxxxxxxxx the government is not prohibited from sharing information contained in such pleadings with representatives of xxx.
This order is consistent with Judge Hogan's orders above (though not perfectly consistent).
The purpose of the habeas proceeding is to determine whether the government has evidence of probable cause (50 yards plus a nose) to believe that the detainee is an enemy combatant - if so, the MCA applies; if not, it does not.
If, for purposes of the habeas proceeding, the detainee were presumed to be an enemy combatant, 7(a)(2) would apply and bar any anti-transfer order. A transfer (detention in a foreign country X under its control, for example) could then be used to defeat the habeas proceeding, since the US would no longer have jurisdiction over the detainee.
Judge Hogan refused to grant that presumption for purposes of the habeas hearing. For purposes of prison conditions, he employed that presumption (at least implicitly) to dismiss the two prison condition petitions.
The three cases might have been handled in a slightly different manner, as follows:
1. The anti-transfer order would be justified by Judge Hogan's logic and denial of any presumption that habeas petitions are "enemy combatants" - the only issue in the habeas proceedings.
2. The petition about prison conditions would not be decided until after the habeas petition is decided on the merits. That would be a right of judicial scheduling and primacy.
3. The presumption re: "enemy combatant" would be rejected for all purposes (which IMO is correct); but that would be of no use to the detainee if the court found probable cause that the detainee was an enemy combatant. In that case, 7(a)(2) would apply to bar the petition on prison conditions. If the court found no probable cause (as the DC Circuit did in Parhat), then the question is the appropriate remedy - for which, we are still looking.
-
KSM: "We are your enemy".....
Quote:
Reuters
September 11 suspect calls U.S. trial "inquisition"
Wed Sep 24, 2008 3:32pm EDT
.....
By Randall Mikkelsen
GUANTANAMO BAY U.S. NAVAL BASE, Cuba (Reuters) ....
....
"We are your enemy," Khalid Sheikh Mohammed told the judge, Marine Col. Ralph Kohlmann. "You are an officer in the United States armed forces ... Myself and my brothers will be judged by the same armed forces that are killing our people." Mohammed spoke in English as he outlined objections at a pretrial hearing to Kohlmann on behalf of himself and four accused September 11 co-conspirators, who face a potential death sentence if convicted. ....
http://www.reuters.com/article/domes...080924?sp=true
KSM's advocacy came in support of the detainee's motion to disqualify the military judge under MCA §949f.(a) & (b):
Quote:
(a) ....The military judge and members of a military commission under this chapter may be challenged by the accused or trial counsel for cause stated to the commission. The military judge shall determine the relevance and validity of challenges for cause.
...
(b) ...The military judge may not be challenged except for cause...
See also RCM Rule 902, Disqualification of military judge, Manual for Courts-Martials - 2008 ed., p. II-88, for the standards under the UCMJ, to the same effect.
The judge denied the motion.
Looks like KSM and his four friends plan on active participation in the trial.
-
Uighurs Away ...
but, not quite yet.
Quote:
All Uighurs now off “enemy” list
Wednesday, October 1st, 2008 9:48 pm Lyle Denniston
.......
The Justice Department, in a move that could put new pressure on a federal judge to decide whether Guantanamo prisoners are to be released when no longer considered “enemy combatants,” has decided to take all 17 members of a Chinese Muslim minority — the Uighurs — off of that enemies list.
....
.... lawyers for the 12 prisoners promptly asked the judge handling their habeas cases — District Judge Ricardo M. Urbina — to order their immediate release after a hearing in his Court next Tuesday. “The government,” that memo said, “has abandoned any right to contend that it may justify the imprisonment of any petitioner before this Court on the grounds that he is an ‘enemy combatant.’ ”
http://www.scotusblog.com/wp/all-uig...ff-enemy-list/
The government's filing is here
http://www.scotusblog.com/wp/wp-cont...mo-9-30-08.pdf
The Uighurs' petition for immediate release is here.
http://www.scotusblog.com/wp/wp-cont...mo-10-1-08.pdf
The interesting legal point here is that, by conceding that the Uighurs are not "enemy combatants", the government has, in effect, restored their full habeas rights - as well as any other rights barred by MCA. At least that is what they are arguing:
Quote:
But our dispute with the government on this point is now academic, for the government has conceded it away in this case. By its own terms, the habeas-stripping statute applies only to an alien “determined by the United States to have been properly detained as an enemy combatant or [who] is awaiting such determination,” 28 U.S.C. § 2241(e)(1). Subsection (2), which purports to bar ancillary remedies — such as, presumably, remedies related to conditions of confinement — also applies only to that defined population. Id. § 2241(e)(2). The mandate has issued in Parhat v. Gates, which means that, as a matter of law, Parhat has never been properly determined to be an enemy combatant. All the other Petitioners are “in the same category,” the
government now says. Thus, even if the habeas-stripping statute succeeded in lopping off statutory rights for other Guantanamo prisoners, Sections 2241 and 2243 (and the rest of statutory habeas) were never stripped as to these Petitioners.
We'll see what Judge Urbina will do with this petition next Tuesday.
Judge Urbina's bio here.
http://www.dcd.uscourts.gov/urbina-bio.html
-
Uighurs get a trip to DC ....
This did not take long.
Quote:
Federal Judge Orders Uighurs in U.S. by Friday
Tuesday, October 7th, 2008 12:29 pm | Ben Winograd
....
A federal judge has ordered the government to release a group of 17 Chinese Muslims held at Guantanamo Bay into the United States, and to present in his courtroom at 10 a.m this Friday.
At a hearing this morning in US District Court in Washington, Judge Ricardo Urbina said the government no longer possessed authority to detain the Uighurs, whom the government has conceded are not enemy combatants and has acknowledged cannot be returned to China for fear of potential persecution.
Judge Urbina ordered a subsequent hearing to be held October 16th, at which members of the Department of Homeland Security could speak to what conditions they wish to apply to the Uighurs presence in the country.
http://www.scotusblog.com/wp/federal...-us-by-friday/
This decision, if it stands, has somewhat limited application to Gitmo detainees in general. The requirement for release from Gitmo to the US (where the detainees will presumably be treated as undocumented immigrants - since the judge ordered DHS into the picture) is a final determination, or concession by the government, that the detainee is not an enemy combatant.
We shall see if the government appeals.
-
DoJ requests stay of Uighur order - part 1
That didn't take long either. DoJ has moved the DC Circuit to stay Judge Urbina's order.
Quote:
U.S. asks Circuit Court for speed on Uighurs
Tuesday, October 7th, 2008 11:46 pm | Lyle Denniston
.....
The Justice Department, in an emergency filing Tuesday night, asked the D.C. Circuit Court to act by no later than tomorrow on its request for a temporary order blocking a judge’s order that 17 Chinese Muslim detainees at Guantanamo Bay be transported to Washington, D.C., this week. The Department said action within the next day was necessary “in order for the government to seek an emergency stay from the Supreme Court, if necessary.” .....
....
Judge Urbina has refused to stay his order, and has refused to issue a short administrative stay to allow the Justice Department to pursue its appeal.
http://www.scotusblog.com/wp/us-asks...ed-on-uighurs/
The reference to SCOTUS in the filing is instructive. The DC Circuit in Parhat (posts above) cleared him of the "enemy combatant" charge (complete lack of evidence) and instructed Judge Urbina to proceed quickly on the other Uighur cases.
The DoJ then conceded that all of the Uighurs were in the same boat as Parhat - thus, none are "enemy combatants". Given that concession, Judge Urbina treated the case as an ordinary habeas case and ordered "the bodies to be brought before him".
Since the DC Circuit has already ruled on the merits, the DoJ probably does not expect it to stay the order. So, the probable need for DoJ to invoke SCOTUS.
Judge Urbina’s oral ruling, and the full hearing transcript, can be found here.
http://www.scotusblog.com/wp/wp-cont...pt-10-7-08.pdf
The transcript is worth reading (for education about how to conduct a hearing); here is an example of a judge taking charge in a nice way - and eliminating the spin:
Quote:
(pp. 4-5)
All right. Let me suggest to you how we're going to do things. I'm going to make some preliminary rulings that will put everyone on the same page as far as salient matters are concerned, and then I believe that counsel have provided more than ample briefings on the issues before the Court today.
If counsel really feel the strong need to iterate, and I don't mean reiterate what's already been stated in your very well prepared and generous submissions, if you feel the need to emphasize something once again, you'll have that opportunity briefly. I will make some more rulings, and if those rulings necessitate the calling of witnesses for more information relevant to the issues extent at that point, then we will call the witnesses.
First of all, let me say that the authorizations that have been submitted representing the authority of the Petitioners' counsel to act on their behalf are satisfactory. I accept them and I have examined them, particularly under the guidelines provided by Adem versus Bush.
Secondly, I'd like to confirm that the Uighurs before the Court in this matter today have similar factual backgrounds, that is to say that the parties acknowledge that there are no material differences between the individual Petitioners that the Court should be made aware of at this time.
If the answer to that question is "yes," then the factual determination made by this circuit in Parhat will apply to all the Petitioners. Are we in agreement? MR. WILLETT: Your Honor, we believe the Government has conceded that point. THE COURT: All right. I know that as of September the 30th the remaining -- the Uighurs not previously recognized as non-enemy combatants have now been designated as non- -- or treated as non-enemy combatants; is that correct? MR. O'QUINN: That's correct, Your Honor. THE COURT: All right. So is my assumption correct? MR. O'QUINN: Yes, Your Honor. ...
The transcript is also instructive in showing that Federal judges, albeit legal beagles as we all are, are more concerned with national security issues than legal technicalities - questions by Judge to DoJ counsel:
Quote:
(pp.15-17)
THE COURT: What is the risk to -- the security risk to the United States? What page is that on? What is the security risk to the United States should these people be permitted to live here? What is it? You've had seven years to study this issue. What is the security risk?
....
THE COURT: I'm not talking about status. I'm talking about what is the security risk. What is the risk to national security if these individuals were admitted? Forget about the legal --
.....
THE COURT: So your answer is these -- these Uighurs are a risk to national security because Congress says so. MR. O'QUINN: My answer, Judge Urbina, without offering any -- you know, I don't have available to me today any particular specific analysis as to what the threats of -- from a particular individual might be if a particular individual were let loose on the street.
Judge Urbina's bench opinion ordering release is at pp. 29-43.
He makes a couple of points that should be of comfort to active duty soldiers serving in a war zone - that is, his opinion does not impose a strait-jacket on them in initially handling detainees. The context is Congress' 2001 AFUMFA and the DoD order of 7 Jul 2004 defining "enemy combatant":
Quote:
(pp. 30-31)
This standard defines an enemy combatant as, quote, an individual who was part or supporting -- part of or supporting Taliban or al Qaida forces or associated forces that are engaged in hostilities against the United States or its coalition partners. Thus far, this standard is the only one recognized by the Supreme Court for legally detaining individuals under the Authorization For Use of Military Force Act.
.....
In this case, the Government has already absolved the Petitioners of their enemy combatant title; that is to say, they have indicated that none of these are to be treated as enemy combatants, so its theory for continued detention is based on an inherent Executive authority to quote/unquote wind-up detentions in an orderly fashion.
Initially, the Petitioners' protest that this wind-up authority should -- should it exist, would not apply to them because they were never lawfully detained in the first instance, but in Boumediene, the Supreme Court made it clear that habeas is not available the moment a person is taken into custody, and in any event, the record is too undeveloped as to the circumstances regarding their transfer from Pakistan officials to U.S. custody to make that determination.
....
Accordingly, the Court assumes, for the sake of this discussion, that the Petitioners were lawfully detained and that the Executive does have some inherent authority to wind up wartime detentions.....
One hopes that this standard (that is, initial detention can be lawful, even though the subsequent final legal determination is that the detainee should no longer be detained) will be followed. Otherwise, we would force MAJ Smith to make definitive legal determinations that SCOTUS has problems with.
-
DoJ requests stay of Uighur order - part 2
After Judge Urbina ruled, the political spin machine went into gear - statements from the White House (Dana Perino) and DoJ are at urls posted below quotes:
Quote:
(from Ms. Perino)
... The district court's ruling, if allowed to stand, could be used as precedent for other detainees held at Guantanamo Bay, including sworn enemies of the United States suspected of planning the attacks of 9/11, who may also seek release into our country. ...
http://www.scotusblog.com/wp/wp-cont...rs-10-7-08.pdf
This is total Bravo Sierra - this ruling is limited to the Uighurs (conceded by DoJ not to be "enemy combatants") - I think I have explained that point enough.
Quote:
(from DoJ)
... Today’s ruling presents serious national security and separation of powers concerns and raises unprecedented legal issues. ...
....
....During the time between the presentment of the Uighurs on October 10 and the hearing on October 16, the court ordered that the government have no supervision or oversight of the released individuals.
http://www.usdoj.gov/opa/pr/2008/October/08-ag-903.html
This is lesser Bravo Sierra. DoJ counsel at argument was unable to articulate the national security risk to the US posed by the 14 Uighurs (see above).
The case does raise separation of powers issues - many of which have been caused by the unprecedented claims to Executive powers by the Bush Administration (IMO - and I am somewhat biased toward Executive power, but there can be too much of a good thing).
The "no supervision or oversight of the released individuals" comes from an off-hand remark of the judge with DoJ counsel toward the end of the hearing - the context was the judge's request that the Uighurs not be arrested on immigration charges once they entered the US for Friday's hearing !
The DoJ and DHS on Friday will have the opportunity to request "supervision or oversight" of the Uighurs pending next week's hearing on what the specific terms of their release will be.
The "no supervision or oversight of the released individuals" claim is in fact belied by the terms of the order proposed by the detainees' attorneys:
Quote:
It is FURTHER ORDERED as follows:
The Court, having reserved the right and power to impose such conditions as it deems reasonable, orders that the government produce each of the Petitioners in this Court on Friday, October 10, 2008, at 10:00 a.m., at which hearing the Court will order their release and impose such short-term terms and conditions of release as it then finds and rules to be reasonable and appropriate; and
That each of the Petitioners and the government shall appear in this Court at a hearing to be commenced on October 16, 2008, to address such other and further terms and conditions of release as the Court may find and rule to be reasonable and appropriate. The parties may offer evidence and argument as to such terms and conditions. The Court directs that the government provide a representative of the Department of Homeland Security to be present at the hearing.
http://www.scotusblog.com/wp/wp-cont...er-10-7-08.pdf
The DoJ notice of appeal and stay filing are here:
http://www.scotusblog.com/wp/wp-cont...rs-10-7-08.pdf
http://www.scotusblog.com/wp/wp-cont...dc-10-7-08.pdf
-
The best defense is a good offense ...
but, first of all, the final order issued by Judge Urbina, in pertinent part:
Quote:
ORDERED that upon entry into the United States, the U.S. Marshals Service shall assume custody of and house the petitioners until presentment before the court on Friday, October 10, 2008 at 10:00 am.
http://www.scotusblog.com/wp/wp-cont...er-10-8-08.pdf
As I said, Bravo Sierra from the political spinners.
Now, onto the rapidly developing story.
Quote:
Detainee lawyers seek familiar Circuit panel
Wednesday, October 8th, 2008 1:55 pm | Lyle Denniston
.....
Seeking to get an appeal panel that has already shown skepticism toward the government’s handling of Chinese Muslim detainees at Guantanamo Bay, lawyers for those 17 prisoners asked the D.C. Circuit Court on Wednesday to assign those same three judges to hear the Bush Administration’s new appeal on the captives’ legal rights.
http://www.scotusblog.com/wp/detaine...amiliar-panel/
The detainees' emergency motion is very simply 6 pages of hard-hitting factual and legal points limited to the particular facts of this case - most all of which cannot be contested. Draw your own conclusions; here it is.
http://www.scotusblog.com/wp/wp-cont...rs-10-8-08.pdf
The DoJ opened the door and now the defense team is walking through it. Since the DoJ wants action today, we should be getting some more news soon enough.
-
Well, not quite yet ...
New DC Circuit panel - new briefing schedule.
Quote:
Detainees’ entry to U.S. blocked, for now
Wednesday, October 8th, 2008 6:55 pm | Lyle Denniston
UPDATED 7:05 p.m.
The D.C. Circuit Court blocked, for at least eight days, the entry of 17 Guantanamo Bay detainees into the U.S., putting on hold a federal judge’s order for their release. ....
.....
The stay order was issued by Circuit Judges Karen LeCraft Henderson, A. Raymond Randolph and Judith W. Rogers.
http://www.scotusblog.com/wp/detaine...amiliar-panel/
The three-judge panel, issuing the order, was totally different from the panel that heard the original Parhat appeal and issued a unanimous opinion clearing him (Chief Circuit Judge David B. Sentelle and Circuit Judges Merrick B. Garland and Thomas B. Griffith).
The order is a temporary administrative stay, which provides:
Quote:
Upon consideration of the emergency motion for stay pending the court’s disposition of a motion for a stay pending appeal, it is
ORDERED that the district court’s order directing that appellees be released into the United States and brought to the district court on October 10, 2008, be stayed pending further order of the court. The purpose of this administrative stay is to give the court sufficient opportunity to consider the merits of the motion for stay pending appeal and should not be construed in any way as a ruling on the merits of that motion. See D.C. Circuit Handbook of Practice and Internal Procedures 32 (2007). It is
FURTHER ORDERED that appellants hand-serve and hand-file their motion for
stay pending appeal by 4:00 p.m., October 10, 2008; appellees hand-serve and handfile a response to the motion by 4:00 p.m., October 14, 2008; and appellants handserve and hand-file any reply by 4:00 p.m., October 16, 2008.
http://www.scotusblog.com/wp/wp-cont...rs-10-8-08.pdf
The detainee's brief opposing the emergency stay can be found here.
http://www.scotusblog.com/wp/wp-cont...ay-10-8-08.pdf
The last page (p.25) is a letter from Bill Delahunt (D) and Dana Rohrabacher (R) requesting DoD to release the Uighurs.
Judge Urbina's order for release, subject to imposition of conditions at the Friday 10 Oct and Thursday 16 Oct hearings, is here.
http://www.scotusblog.com/wp/wp-cont...er-10-8-08.pdf
That order is now stayed until the DC Circuit hears the DoJ's motion to enter a long-term stay until the DoJ's appeal of the release order is heard. To summarize:
Quote:
1. The DoJ's motion for a temporary stay has been granted.
2. The DoJ's motion for a stay during the pendency of its appeal of the release order will be decided after Thursday of next week.
3. If that stay is granted, the DoJ's appeal on the merits of releasing the detainees will be briefed, argued and decided. How long that will take is up to the DC Circuit panel.
4. If that stay is denied, the appeal will still continue; but Judge Urbina would then have his hearings to impose conditions for release.
Have to look around and see what Dana R has to say about all this.