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As many readers here might well remember, a month ago the D.C. Circuit Court of Appeals issued a significant ruling relating to a number of the Guantánamo detainee cases pending before it.  Recall that under the Detainee Treatment Act of 2005, the D.C. Circuit was empowered as the court for appellate review of determinations made by the Pentagon's Combatant Status Review Tribunals as to whether detainees can continue to be held (and ultimately for them to be prosecuted pursuant to the terms of the noxious Military Commissions Act of 2006).

In that decision, the court held that it needed to examine all the evidence relating to a detainee in order to make the determination as to whether the CSRT finding was correct, or flawed.  (This is discussed further, below.)

Now, in the first test case to come before the court, Paracha v. Gates, the Department of Justice is -- surprise! -- seeking at least an extra month beyond its deadline of September 13 to compile, and file with the court, a "revised certified index" to the materials relevant to this detainee.

Once again, the entire legal "strategy" of the Bush Administration becomes apparent:  delay, delay, delay, all in the hope that no truly final determination will come until after the keys to the Executive Branch have been turned over to a Democrat (whom the right-wingers will of course blame for letting all those "terrorists" held in Gitmo go, knowing full well who's truly responsible for it all).

A key holding of that July 20 decision in Bismullah v. Gates and Parhat v. Gates (which is applicable to all the other detainee cases before the D.C. Circuit) was the need for the court itself to examine all the government's information relating to that detainee, not merely the selected evidence used to preserve the prisoner's detention status:

[T]he court must be able to view the Government Information with the aid of counsel for both parties; a detainee’s counsel who has seen only the subset of the Government Information presented to the Tribunal is in no position to aid the court. There is simply no other way for the counsel to present an argument that the Recorder [a military officer charged with collecting and presenting the government's evidence] withheld exculpatory evidence from the Tribunal in violation of the specified procedures. Even if the Recorder’s actions are entitled to a presumption of regularity, as the Government maintains — but which is not at all clear because a CSRT does not have the transparent features of the ordinary administrative process and the Recorder is not the final agency decisionmaker — that presumption is not irrebuttable; but it would be irrebuttable, in effect, if neither petitioners’ counsel nor the court could ever look behind the presumption to the actual facts. In addition, the court cannot, as the DTA charges us, consider whether a preponderance of the evidence supports the Tribunal’s status determination without seeing all the evidence, any more than one can tell whether a fraction is more or less than one half by looking only at the numerator and not at the denominator.  (Op. at 13-14; emphasis added; internal citations omitted)

Although this ruling didn't create the equivalent of a full-fledged habeas corpus review (issues which will be coming up separately before the Supreme Court during the upcoming term in the consolidated cases of Boumediene v. Bush, 06-1195, and Al Odah v. United States, 06-1196, where petitioners' opening briefs -- as well as those of any amici -- are to be filed this coming Friday, August 24), it's a whole lot closer to one than anything the detainees have been able to receive up to this point.

As part of its review process, the court noted:

[W]e will enter a protective order adopting a presumption, as proposed by the petitioners, that counsel for a detainee has a "need to know" the classified information relating to his client’s case, except that the Government may withhold from counsel, but not from the court, certain highly sensitive information.  (Op. at 3; emphasis added)

In Paracha, counsel filed its original merits brief (69-page PDF file) supporting invalidation of the final decision by the CSRT just before the decision in Bismullah/Parhat.  (Paracha, it should be noted, held a permanent U.S. resident visa, was captured in Thailand in July 2003 and transferred to Guantánamo in September 2004.)  The brief raised the following issues for consideration by the D.C. Circuit Court:

  1. Whether the government must provide habeas relief or an equivalent remedy before it may detain Saifullah Paracha, a lawful permanent resident of the United States, indefinitely at the U.S. Naval Station Guantanamo Bay as an enemy combatant.
  1. Whether precluding Paracha from raising claims under the Geneva Conventions in this action would violate the Suspension Clause and the doctrine of Ex parte Klein, which forbids the courts from ignoring applicable laws.
  1. Whether Paracha's CSRT, conducted before [military officials] adopted the standards and procedures required by the DTA, violated the Constitution and laws of the United States and the standards and procedures required by the DTA.
  1. Whether Paracha's CSRT violated the Constitution and laws of the United States as well as procedures under which it was conducted because the CSRT staff failed to collect all evidence and submit exculpatory evidence, and because the CSRT failed to review the reliability of secret hearsay evidence used against Paracha which in all likelihood was obtained by torture or coercion.

In light of the July 20 decision, however, Paracha's counsel sought to withdraw their original brief and develop a new briefing schedule.  It's not clear whether counsel anticipates making entirely new arguments that would alter or supplement the issues listed above.  On August 10, the court scrapped the old schedule and ordered that the government file its revised certified index to the record, as record is defined in Bismullah, no later than September 13 (approximately six weeks before Paracha's revised brief would be due).

That same day (it seems without yet knowing of the new order), Paracha's counsel sent a deceptively short letter to the DOJ detailing ten categories of documents it expected to be turned over to the court and to detainee's counsel.  Given the rather broad nature of some of these categories, it was almost to be expected that a fight would ensue over how extensive the government's production would actually need to be (keeping in mind that this is the first time through this process for any detainee case).

Now, this past Monday (August 20), the DOJ filed its motion for a temporary stay of the August 10 order,

so that the revised certified index will be due thirty days after this Court has disposed of any timely-filed rehearing petition in Bismullah, or, if no rehearing petition is filed, thirty days thereafter (i.e., on October 13, 2007). If this relief is not granted, respondent requests an extension of thirty days, up to October 13, 2007, in which to file the revised certified index.
   --  --  --
[T]he bell that will be rung in complying with this Court's order to submit a revised certified index (and the concomitant requirement to provide the record to petitioner's counsel) cannot be unrung if a rehearing petition is filed and this Court determines it should rehear or otherwise clarify its ruling in Bismullah. And the bell that will be rung entails revealing to private counsel large quantities of highly classified national security information that counsel has no "need to know" for litigation of the case. Thus, the United States could suffer irreparable injury if a temporary stay is not granted.

Somebody over at the DOJ must have a thing for bells, apparently.  I think we can all see this for what it is:  a clear attempt to play the various active cases off against one another in order to push any ultimate accounting out to the latest possible date.

Note that the DOJ isn't even committing to filing papers by Sept. 13 in Bismullah (though it is certainly likely to do so), but that it wants the stay here in Paracha imposed just in case.  And should the government file a petition for rehearing in Bismullah to narrow the scope of the July 20 decision, it wants to put off any production of materials in Paracha until after a ruling on its petition, something that could easily take another few months.  By that time, the Boumediene and Al Odah cases before the Supreme Court would be fully briefed and ready for oral argument, which could cause the D.C. Circuit Court to informally put everything on hold while it waits for a decision.  Next thing you know, we're well into 2008, and the ball has just barely moved forward.

Molasses in winter seems to be a fairly apt analogy for the speed with which the Bush Administration wants to deal with any of the detainee cases, and it's not surprising considering that virtually every major court ruling in each case so far has come down on this Administration like a ton of bricks.  I mean, at the core here we're "only" dealing with some of the most basic principles of habeas corpus jurisprudence which have acted as a restraint against unfettered executive power for 800 years.  But historical precedent has never been a strong suit for the circle-the-wagons crowd that's running the DOJ these days.

In the meantime, the detainees in Guantánamo continue to wait . . . and wait . . . and wait . . .

Originally posted to The Maven on Tue Aug 21, 2007 at 01:05 PM PDT.

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