Team Infidel
Forum Spin Doctor
New York Times
February 6, 2008 News Analysis
By Linda Greenhouse
WASHINGTON — Two months after the Supreme Court heard arguments in a case on the rights of the Guantánamo detainees, an unanticipated development has suddenly scrambled the outlook for a straightforward resolution. Cases that have been proceeding on completely separate judicial tracks may be about to converge.
The Bush administration said on Monday that it would file an emergency appeal at the court, seeking review of a lower-court ruling that the government must supply more information to defend its designation of a detainee as an enemy combatant — entirely too much information, in the administration’s view.
The appeal, to be filed by Feb. 14, a day before the justices’ next closed-door conference, will ask the court to add the new case to an argument calendar that had appeared to be complete for the remainder of the term when the justices departed on their current recess two weeks ago.
On the surface, the two cases appear quite distinct. Boumediene v. Bush, the case the Supreme Court heard on Dec. 5, challenges Congress’s withdrawal of the federal courts’ jurisdiction to hear habeas corpus petitions from detainees contesting their open-ended confinement. Whether the Military Commissions Act of 2006 violated the Constitution’s injunction against the “suspension” of habeas corpus is a question steeped in constitutional history and theory.
By contrast, Bismullah v. Gates, the subject of the administration’s new appeal, is as deep in the weeds of Congressional intent as the Boumediene case is high up in the realm of constitutional principle. It concerns the intricate system that Congress established in the Detainee Treatment Act of 2005 for determining whether a prisoner at Guantánamo Bay was being properly held as an enemy combatant. The dispute is over how extensive a record the government must supply when a prisoner designated as an enemy combatant then appeals to the forum provided by the 2005 law, the United States Court of Appeals for the District of Columbia Circuit.
Below the surface, however, the two cases are inextricably entwined. They overlap on the question of judicial review of the enemy-combatant designation. Under the Supreme Court’s precedents, habeas corpus — the historic method of challenging detention by the executive branch — is not always strictly required as long as the legislature has provided an “adequate substitute.” So the question is whether the review that detainees may seek in the D. C. Circuit is extensive enough to qualify as such a substitute. In the Boumediene case, the detainees’ lawyers have argued vigorously that it is not, while the administration has asserted just as forcefully that it is.
Which side is right depends on what the review consists of. The D. C. Circuit appeared well on the way to defining the scope of its review last July, when a three-judge panel of the 10-member appeals court rejected the administration’s argument and ruled that the government had to turn over “relevant information in its possession that is reasonably available,” including evidence withheld from the military’s “combatant status review tribunal” that made the original enemy-combatant designation. The panel, including two of the appeals court’s more conservative judges, Chief Judge Douglas H. Ginsburg and Judge Karen LeCraft Henderson, was unanimous.
Then things got complicated. The administration, arguing that the decision imposed an intolerable burden, asked the three judges to reconsider the case. In October, the panel refused. The administration next sought rehearing from the full court. Last Friday, the judges split 5 to 5, a tie that had the effect of denying rehearing and leaving the panel’s opinion as the law.
This was no ordinary split. Judge A. Raymond Randolph, writing for four of those who voted for reconsideration, declared that the panel’s opinion “endangers national security.” Chief Judge Ginsburg, Judge Randolph’s usual ideological ally, replied in defense of the opinion that “the court obviously must see all the government information” in order to fulfill the duty of appellate review that Congress gave it.
On Monday, the Justice Department asked the appeals court for a stay of the ruling to give the Supreme Court a chance to act, warning that “immediate and drastic consequences” would otherwise result.
The pressure on the justices to take up the Bismullah case may consequently be irresistible, even at the cost of upsetting their carefully composed schedule. The intriguing question is which side in the Boumediene case stands to benefit more. The answer is far from clear, due to a paradox that lies at the intersection of the two cases.
If the government’s argument for a severely limited review in the D.C. Circuit wins the day, the detainees’ lawyers would appear to be strengthened in their position that no adequate substitute for habeas corpus has been provided. On the other hand, a requirement, which the detainees seek, for a more robust appellate review could strengthen the government’s hand in arguing that there is no need for habeas corpus after all. Each side, in other words, could be in the position of arguing against its own interest if the court grants review in the Bismullah case.
That would be only the latest twist in a legal dispute now in a third Supreme Court round with no obvious end in sight. What government information is “reasonably available?” What is the remedy for a faulty enemy-combatant designation? As the justices know as well as anyone, every answer leads to more questions.
February 6, 2008 News Analysis
By Linda Greenhouse
WASHINGTON — Two months after the Supreme Court heard arguments in a case on the rights of the Guantánamo detainees, an unanticipated development has suddenly scrambled the outlook for a straightforward resolution. Cases that have been proceeding on completely separate judicial tracks may be about to converge.
The Bush administration said on Monday that it would file an emergency appeal at the court, seeking review of a lower-court ruling that the government must supply more information to defend its designation of a detainee as an enemy combatant — entirely too much information, in the administration’s view.
The appeal, to be filed by Feb. 14, a day before the justices’ next closed-door conference, will ask the court to add the new case to an argument calendar that had appeared to be complete for the remainder of the term when the justices departed on their current recess two weeks ago.
On the surface, the two cases appear quite distinct. Boumediene v. Bush, the case the Supreme Court heard on Dec. 5, challenges Congress’s withdrawal of the federal courts’ jurisdiction to hear habeas corpus petitions from detainees contesting their open-ended confinement. Whether the Military Commissions Act of 2006 violated the Constitution’s injunction against the “suspension” of habeas corpus is a question steeped in constitutional history and theory.
By contrast, Bismullah v. Gates, the subject of the administration’s new appeal, is as deep in the weeds of Congressional intent as the Boumediene case is high up in the realm of constitutional principle. It concerns the intricate system that Congress established in the Detainee Treatment Act of 2005 for determining whether a prisoner at Guantánamo Bay was being properly held as an enemy combatant. The dispute is over how extensive a record the government must supply when a prisoner designated as an enemy combatant then appeals to the forum provided by the 2005 law, the United States Court of Appeals for the District of Columbia Circuit.
Below the surface, however, the two cases are inextricably entwined. They overlap on the question of judicial review of the enemy-combatant designation. Under the Supreme Court’s precedents, habeas corpus — the historic method of challenging detention by the executive branch — is not always strictly required as long as the legislature has provided an “adequate substitute.” So the question is whether the review that detainees may seek in the D. C. Circuit is extensive enough to qualify as such a substitute. In the Boumediene case, the detainees’ lawyers have argued vigorously that it is not, while the administration has asserted just as forcefully that it is.
Which side is right depends on what the review consists of. The D. C. Circuit appeared well on the way to defining the scope of its review last July, when a three-judge panel of the 10-member appeals court rejected the administration’s argument and ruled that the government had to turn over “relevant information in its possession that is reasonably available,” including evidence withheld from the military’s “combatant status review tribunal” that made the original enemy-combatant designation. The panel, including two of the appeals court’s more conservative judges, Chief Judge Douglas H. Ginsburg and Judge Karen LeCraft Henderson, was unanimous.
Then things got complicated. The administration, arguing that the decision imposed an intolerable burden, asked the three judges to reconsider the case. In October, the panel refused. The administration next sought rehearing from the full court. Last Friday, the judges split 5 to 5, a tie that had the effect of denying rehearing and leaving the panel’s opinion as the law.
This was no ordinary split. Judge A. Raymond Randolph, writing for four of those who voted for reconsideration, declared that the panel’s opinion “endangers national security.” Chief Judge Ginsburg, Judge Randolph’s usual ideological ally, replied in defense of the opinion that “the court obviously must see all the government information” in order to fulfill the duty of appellate review that Congress gave it.
On Monday, the Justice Department asked the appeals court for a stay of the ruling to give the Supreme Court a chance to act, warning that “immediate and drastic consequences” would otherwise result.
The pressure on the justices to take up the Bismullah case may consequently be irresistible, even at the cost of upsetting their carefully composed schedule. The intriguing question is which side in the Boumediene case stands to benefit more. The answer is far from clear, due to a paradox that lies at the intersection of the two cases.
If the government’s argument for a severely limited review in the D.C. Circuit wins the day, the detainees’ lawyers would appear to be strengthened in their position that no adequate substitute for habeas corpus has been provided. On the other hand, a requirement, which the detainees seek, for a more robust appellate review could strengthen the government’s hand in arguing that there is no need for habeas corpus after all. Each side, in other words, could be in the position of arguing against its own interest if the court grants review in the Bismullah case.
That would be only the latest twist in a legal dispute now in a third Supreme Court round with no obvious end in sight. What government information is “reasonably available?” What is the remedy for a faulty enemy-combatant designation? As the justices know as well as anyone, every answer leads to more questions.