DC APPEALS Court Denies Bush request to Reconsider Gitmo Ruling
MichaelP
M.
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http://apnews.myway.com/article/20080201/D8UHKRCG1.html
Court Won't Reconsider Guantanamo Ruling
By MATT APUZZO
WASHINGTON (AP) - A federal appeals court refused Friday to reconsider a
ruling broadening its own authority to scrutinize evidence against
detainees at Guantanamo Bay.
The decision is a setback for the Bush administration, which was
displeased by the court's three-judge ruling in July and had urged all 10
judges on the U.S. Court of Appeals for the District of Columbia Circuit
to review it. The administration said the decision jeopardized national
security.
The ruling held that, when Guantanamo Bay detainees bring a court
challenge to their status as "enemy combatants," judges must review all
the evidence, not just the evidence the military chooses.
After criminal trials, appeals courts are limited in what evidence
they can review. But hearings at Guantanamo Bay are not trials.
Detainees are not allowed to have lawyers and the Pentagon decides
what evidence to present. And unlike in criminal trials, the
government is not obligated to turn over evidence that the defendant
might be innocent.
"For this court to ignore that reality would be to proceed as though the
Congress envisioned judicial review as a mere charade," Chief Judge
Douglas H. Ginsburg wrote Friday.
If the military reviewers designate a prisoner an enemy combatant, the
prisoner can challenge that decision before the appeals court in
Washington. The court was divided 5-5 on whether to reconsider its
earlier decision. A majority of judges must vote to reconsider a
ruling as a full court.
The Supreme Court is watching the case as it considers a landmark case
challenging whether the military tribunal system is unconstitutional.
With the high court waiting, it would not be in the public's interest to
reconsider the case and risk delaying a Supreme Court decision, Judge
Merrick B. Garland wrote.
Judge A. Raymond Randolph issued a stern retort.
"We think that it is more important to decide the case correctly,"
Randolph wrote on behalf of the dissenting judges, "and that a correct
decision would be of more assistance to the High Court."
It is unusual for judges to issue written opinions when denying such
requests. The decision to issue a multiple written opinions
underscores both how important and contentious the issue is.
The Justice Department did not immediately comment on the decision.
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http://www.scotusblog.com/wp/uncategorized/no-rehearing-on-major-detainee-ruling/
Further briefing in detainee cases?
Saturday, February 2nd, 2008 1:03 am
When the Supreme Court last June 29 reversed position and decided,
after all, to hear the two pending cases on the legal rights of
Guantanamo Bay detainees, it said that its review would be aided by a
decision that was then expected to emerge from the D.C. Circuit Court in
two other cases focusing on the ground rules for judicial review of
military detention decisions. The Supreme Court also indicated that it
would call for supplemental briefing in the cases then before it,
after the Circuit Court had finished its work on the still-pending
litigation in that Court.
With Friday's denial of rehearing en banc by the Circuit Court in that
litigation, the Circuit Court's panel decision of last July 20 becomes
final, and, therefore, the Supreme Court will now face the question of
whether, two months after oral argument in the cases on its docket, it
still wishes to have further briefing. This prospect was discussed in
some of the opinions the Circuit Court issued on Friday, with the
judges of that Court debating whether it would aid or complicate the
Supreme Court's work if the Circuit Court should itself undertake
a new round of consideration.
The Friday order, barring that new round of review there, left it up
to the Supreme Court to decide on the next step, but with the Justice
Department and detainees' lawyers perhaps opting fairly soon to take
positions in the Supreme Court on how to proceed.
There is also a question of whether the Department will seek a stay of the
Circuit Court's July decision (an issue mentioned in the body of the post
below).
* * * * * * * * * *
The full D.C. Circuit Court, splitting evenly, refused on Friday to
reconsider a July 20 ruling that requires the government to provide a
wide array of information it has about Guantanamo Bay detainees when the
Circuit Court hears their challenges to military orders requiring their
continued captivity. Under the Detainee Treatment Act of 2005, the
Guantanamo prisoners have a legal right to ask the Circuit Court to
review Pentagon decisions to designate them as "enemy combatants," a
finding that mandates that they remain at the prison on the island of
Cuba.
The three-judge Circuit Court panel ruling last summer that was left
intact by Friday's order was a partial but significant victory for
detainees and their volunteer lawyers, because it was interpreted by
both sides as giving the detainees a chance to test a large dossier of
information that the government might have that may bear on whether
they actually are "combatants" -- plus a chance for detainees' counsel to
offer more favorable information for the prisoners.
The government had wanted the record to be reviewed by the Circuit
Court to be limited only to the information that Pentagon panels
(Combatant Status Review Tribunals) had considered.
The 5-5 Circuit Court split Friday in the combined cases of Bismullah v.
Gates (Circuit docket 06-1197) and Parhat v. Gates (06-1397) came nearly
five months after the Bush Administration had asked for en banc rehearing,
and just about four months after the three-judge panel had declined
rehearing of its July 20 decision. The Circuit Court posted a 37-page
opinion, composed of five separate statements discussing the denial of
rehearing en banc.
The opinion can be downloaded
<http://www.scotusblog.com/wp/wp-content/uploads/2008/02/bismullah-parhat-rehear-order-2-1-08.pdf>.
The ruling brought a sharp exchange between four judges on one side of
the rehearing denial and four judges on the other, over whether the
panel decision posed a danger to national security.
In seeking rehearing and en banc rehearing last Sept. 7, the
government had argued that the panel's July 20 decision risked
exposure of vital national security information and posed a
significant danger that officials would be diverted from their
opportunity to continue waging a "war on terrorism." The government
sought to buttress those claims with public as well as secret
declarations by the entire top echelon of the nation's intelligence
agencies.
The government had urged the Circuit Court to act swiftly on its
rehearing request, so that, if that were denied, the government could
then move swiftly to the Supreme Court. The aim was to get the ground
rules for judicial review of "enemy combatant" decisions before the
Justices during the current Term, alongside the Justices' then-planned
review of two basic cases testing whether Guantanamo detainees have
rights to challenge their initial and continued detention in a legal
setting that would give them greater rights and a more enhanced chance of
winning their release. In the time the Circuit Court took to
consider the rehearing plea, the Supreme Court moved on with the other
detainee cases (Boumediene v. Bush, 06-1195, and Al Odah v. U.S.,
06-1196), holding a hearing Dec. 5 and now proceeding to deliberate
toward a decision. It now appears quite unlikely that the Justices
could hear and decide an appeal in the Bismullah/Parhat cases this
Term, should the government now file. Still, the government may try to
delay the Circuit Court panel ruling because, otherwise, it would have
to produce the information that that decision requires. It could seek a
stay either from the Circuit Court or from the Supreme Court to keep
everything on hold for the time being -- a move that, if it
succeeded, could keep the detainee challenges in legal limbo for
months to come.
The three-judge Circuit Court panel handling Bismullah/Parhat refused
rehearing on Oct. 3, but nothing was heard from the en banc court of ten
judges until Friday. The government did win one small but
important point when the en banc Court acted: it agreed to allow
access to the intelligence officials' top-secret declarations only to the
judges themselves, and not to the lawyers for detainees or even to the
judges' own law clerks.
This was the breakdown of the full Circuit Court's split in denying en
banc review:
Against review: Circuit Judges Douglas H. Ginsburg and Judith Rogers
(members of the three-judge panel) and Circuit Judges Thomas Griffith and
David S. Tatel, all joining in a Ginsburg opinion, plus Circuit Judge
Merrick Garland, who wrote separately.
In favor of review: Circuit Judge Karen LeCraft Henderson (a member of the
three-judge panel) and Circuit Judges Janice R. Brown, Brett
Kavanaugh, A. Raymond Randolph and David B. Sentelle; Henderson wrote a
dissent joined by Kavanaugh, Randolph and Sentelle; Randolph wrote a
dissent joined by Henderson, Kavanaugh and Sentelle (Judge Randolph
also filed a concurring statement for himself); Judge Brown
wrote separately in dissent.