U.S. mounts sweeping challenge to Circuit Court

UPDATE Saturday a.m. The Justice Department, in added materials filed with the rehearing petition on Friday, asked the Circuit Court to allow only the judges — not their law clerks, and not the detainees’ lawyers — to see or use two secret versions of declarations by the heads of the CIA and the NSA. The motion to restrict access to those items can be found here. The Department also filed a motion to expedite the Circuit Court’s consideration of its rehearing petition; that document can be found here.

The motion to expedite argued that fast action by the Circuit Court on the rehearing plea could enable the Supreme Court to have the benefit of the Circuit Court’s views on officials’ document-filing duties as the Justices consider the pending detainee cases (Boumediene v. Bush, 06-1195, and Al Odah v. U.S., 06-1196). If the Circuit Court were to deny rehearing, the Department said, the government would then have the option of appealing the Bismullah/Parhat case to the Supreme Court during the current Term. The question of how much information the government must turn over to the Circuit Court and to detainees’ lawyers is “an exceptionally important threshold question” as the Circuit judges weigh enemy combatant rulings, the motion siad..

Analysis

With a full rank of the Nation’s top intelligence officers warning that they will have to sacrifice some of their efforts in wagng war on global terrorism if they must obey a court ruling in the Guantanamo detainee cases, the Justice Department on Friday asked the full ten-judge D.C. Circuit Court to reconsider a three-judge panel ruling on the scope of judicial review of some 130 detainee lawsuits. The petition and accompanying declarations by five high-level officials amount, first, to a wide-ranging challenge to the Circuit Court — almost to the point of accusing it of endangering national security, and, second, to an energetic new attempt to sharply narrow any civilian court review of detainee challenges to their continued confinement.

The petition for rehearing en banc was filed in the combined cases of Bismullah v. Gates (06-1197) and Parhat v. Gates (06-1397), in which the Circuit Court laid down the basic procedural rules for its congressionally-assigned review of “enemy combatant” rulings for Guantanamo Bay detainees. Those rulings are made by Pentagon panels named Combatant Status Review Tribunals; a finding that a detainee remains a combatant results in continued detention.

It will take the votes of a majority of the 10 active Circuit judges to grant reconsideration.

To read the rehearing petition, click here. To read the original July 20 panel opinion by the Circuit Court, click here.

A declaration of Michael V. Hayden, director of the Central Intelligence Agency, is here, one by Robert Mueller, director of the Federal Bureau of Investigation, is here, one by Keith B. Alexander, director of the National Security Agency, is here, one by J. Michael McConnell, National Intelligence director, is here, and one by Deputy Secretary of Defense Gordon R. England, Deputy Secretary of Defense, is here. A final added document, Pentagon regulations on reviewing detainee evidence, is here. In addition to the public versions of the officials’ statements, classified versions with more secret materials were submitted to the Court.

As Justice Department and other government officials read the Circuit Court’s ruling in Bismullah/Parhat, it would compel a government-wide search to find and then share with the Court and with detainees lawyers any kind of information — highly sensitive or otherwise — that might bear upon each individual’s status as an “enemy combatant” even if some or even a great deal of the information casts no doubt on the validity of designating an individual as a combatant. That, the Department’s petition argued, goes far beyond what Congress meant in 2005 when it passed the Detainee Treatment Act, assigning to the Circuit Court the exclusive role in hearing detainees’ legal complaints about the status findings by CSRTs.

DTA was passed as a substitute for habeas corpus challenges by detainees; Congress had moved to wipe out all such habeas cases. The Department argued Friday that “It is inconceivable that as Congress sought to displace traditional habeas review it intended to impose a record review far more extensive than anhy production requirement found in habeas.”

The Circuit Court on July 20 rejected the government argument that all it had to produce, in any individual detainee challenge to a combatant designation, was the actual record that a CSRT had considered. Going considerably beyond that, the Circuit Court ordered the government to produce all government information about each detainee who files a DTA challenge. The ruling, though, allowed the government to withhold from the other side’s lawyers sensitivie classified information.

Friday’s filings argued, however, that even filing some of the information under tight security wraps would pose heavy risks to national security, because it would compromise promises of confidentiality to other countries and to human intelligence sources who had supplied some of the information.

CIA Director Hayden’s separate declaration argued: “The breadth of discovery apparently required by the Court’s decision will include information about virtually every weapon in the CIA’s arsenal to combat the terrorist threat to the United States.” Deputy Defense Secretary England contended that the Circuit Court ruling’s command to produce all the government information “will require DoD to pull resources away from the warfighting and intelligence gathering missions that are essential to fighting the Global War on Terrorism. We cannot overstate the importance of ensuring that our components can focus on their primary missions.”


As of Friday, the government remains under a court-ordered duty to produce the first full record about a detainee by next Thursday, Sept. 13. That would be in the case of Paracha v. Gates (06-1038) — the opening review of a CSRT combatant finding, but probably only the first of at least 130 such reviews by the Circuit Court. The Justice Department has asked the Circuit Court to give it at least a 30-day postponement in deliverying that record, but has also requested that it not be required to submit any such record until after the Circuit Court decides whether to grant rehearing of Bismullah/Parhat. The Court apparently has not yet reacted to those requests.

From the earliest point in the Circuit Court’s consideration of how it will conduct its review of CSRT findings, there has been a fundamental disagreement between the two sides. The government has argued that the kind of review Congress had in mind was only a limited weighing of the CSRT results, just like an ordinary Circuit Court review of an administrative agency’s work. The detainees’ lawyers, The detainees’ lawyers, however, have contended that the Court’s review must be the virtual equivalent of habeas review, or else the CSRT and DTA processes would have to be found unconstitutional. The Circuit Court’s July 20 ruling seemed to fall more closely on the side of the detainees’ demands, producing a government response that has steadily escalated in recent weeks into the full-scale challenge that emerged on Friday.

A central theme of the Department’s rehearing petition was that, in a criminal case in the civilian context, courts do not require prosecutors to produce everything in their files so that the court can decide on its own what should be produced for the court and shared with the other side. The DTA process, being carried out in a “unique wartime context,” should not be understood to give detainees more rights — and the courts more power — than in the civilian criminal context, the Department argued. “There is no reason,” it contended, “to conclude that a court’s duty in reveiwing the wartime status determination of an alien enemy combatant under the DTA would be so much broader than its duty in reviewing a constitutional violation in a domestic criminal case,” the petition said.

Another main theme, of course, was the suggestion that the Court’s delving into all of the government information about a detainee would not only impose “an enormous burden” on the government in collecting that data, but also would severely restrict the government’s ability to “collect inteligence and wage the war on terrorism,” citing the assertions of three of the officials who filed declarations.

Under federal court rules, the detainees’ lawyers do not have an automatic right to file a reponse to the rehearing petition. They could do so only if the Circuit Court asked for a brief in response. Rehearing would not be granted, usually, unless a response were sought. There is no time limit for the Court to act further on the rehearing plea.

In the first DTA review case, involving Saifullah Paracha, his lawyers have opposed the government request for postponement of the information-filing deadline of Sept. 13.



8 Comments »



  1. I admit to not knowing the details of the DTA, but at first blush it would seem that the Bush admin is probably correct in its intepretation of what congress (and bush) intended - they intended a judicial review process that would be significantly circumscribed compared to the usual Habeas review.

    Otherwise, why would they have bothered to enact the law?

    Comment by steve jaros — September 7, 2007 @ 8:54 pm

  2. steve jaros,

    Perhaps but in what ways did they expect it to be so circumscribed. It seems that the ruling in question still provides considerable protections and allowances for sensitive material beyond a traditional habeas review as well as other restrictions.

    My sense is the problem the court faces is the following. In a normal prosecution the prosecutors office doesn’t receive cherry picked evidence. While there are obviously going to be exceptions one can usually assume that there isn’t any super-prosecutor beyond the reach of the court going through the record and cleaning out any potentially exculpatory evidence.

    Now you might say that the prosecutor is required to turn over any reasonably exculpatory evidence to the court. Alright so the defendant uses the defense that the government is cherry picking evidence to put him in the worst light what happens now. It is not clear that in a normal criminal case the court would have the power to either satisfy itself or let the defense discover evidence to make this case. What happens here?

    Fundamentally the problem is that a fair trial requires the defense (or at least the court) have an unbiased sample of the government’s evidence. But in order to truly have this sort of sample they have to at least have an idea of the counters of the evidence that is available, exactly what the government hopes to keep secret.

    Note this doesn’t require any malice on the government’s part merely the fact that they will be deciding what is exculpatory based on their theory of the case which in itself is fundamentally biasing.

    Comment by logicnazi — September 8, 2007 @ 1:23 am

  3. steve jaros,

    Perhaps but in what ways did they expect it to be so circumscribed. It seems that the ruling in question still provides considerable protections and allowances for sensitive material beyond a traditional habeas review as well as other restrictions.

    My sense is the problem the court faces is the following. In a normal prosecution the prosecutors office doesn’t receive cherry picked evidence. While there are obviously going to be exceptions one can usually assume that there isn’t any super-prosecutor beyond the reach of the court going through the record and cleaning out any potentially exculpatory evidence.

    Now you might say that the prosecutor is required to turn over any reasonably exculpatory evidence to the court. Alright so the defendant uses the defense that the government is cherry picking evidence to put him in the worst light what happens now. It is not clear that in a normal criminal case the court would have the power to either satisfy itself or let the defense discover evidence to make this case. What happens here?

    Fundamentally the problem is that a fair trial requires the defense (or at least the court) have an unbiased sample of the government’s evidence. But in order to truly have this sort of sample they have to at least have an idea of the countours of the evidence that is available, exactly what the government hopes to keep secret.

    Note this doesn’t require any malice on the government’s part merely the fact that they will be deciding what is exculpatory based on their theory of the case which in itself is fundamentally biasing.

    Comment by logicnazi — September 8, 2007 @ 1:24 am

  4. Steve, the DTA directs the D.C. Circuit to determine the validity of a final decision of a Combatant Status Review Tribunal (”CSRT”) that a prisoner is properly held as an enemy combatant. (Full disclosure: I’m counsel for some of the petitioners in the Boumediene and Al Odah cases in the Supreme Court and in DTA cases in the D.C. Circuit.) The court must determine, among other things, whether the CSRT’s decision is supported by a “preponderance of the evidence” and whether the CSRT followed its own procedures. The government argues that the record on which the D.C. Circuit is supposed to make the preponderance determination is limited to the evidence that the government itself presented to the CSRT. If the government were correct, DTA review in the D.C. Circuit would be a rubber-stamp. As the D.C. Circuit observed, however, under applicable CSRT regulations, a CSRT decision is supposed to be based on all information the tribunal is authorized to obtain and consider, pursuant to the procedures specified by the Secretary of Defense — not just the information the government presented to it. As Chief Judge Ginsburg memorably put it, “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.” It’s abundantly clear that the responsible agencies stonewalled the “Recorder” — the CSRT official who was charged with gathering the information to present to the tribunal — and that the entire system for gathering information for presentation to the CSRT was unreliable and biased against the prisoner. Unwelcome to the government as was the D.C. Circuit’s decision in Bismullah, DTA review is still a far, far cry from habeas, and a wholly inadequate substitute for habeas, for reasons explained in detail in the party and amicus briefs in Boumediene. Lyle has posted the party briefs and, I believe, some amicus briefs. All are available at Mayer Brown’s Boumediene/Al Odah Supreme Court Case Brief Resource Center, http://www.mayerbrown.com/probono/news/article.asp?id=3706&nid=291. I encourage you to read these briefs, as well as the Bismullah decision. Best, David Remes

    Comment by David Remes — September 8, 2007 @ 10:36 am

  5. David,

    Thanks very much for that information. Your argument is persuasive except for one point: isn’t it usual that in an appellate proceeding, the appellate court is supposed to confine its analysis to the case record generated by the lower court - that is, to whatever evidence was presented in the lower court proceedings. The appellate court doesn’t get to hear a “re-trying of the case” so to speak.

    If so, then why would the DTA permit the DC Circuit to require the government to conduct a wide-ranging search for evidence that wasn’t presented at the CSRT hearings? That seems very similar to retrying the case in its entirety, which strikes me as different from the usual appellate role.

    If not, well then i don’t have a point! :)

    Comment by steve jaros — September 8, 2007 @ 1:45 pm

  6. As counsel to the Parhat petitioners, I have to confess a bias up front, but I have never understood how the Circuit could reach a different view as to the record on review. The statute directs the court to determine whether the CSRT’s finding was consistent with regulations. The regulations required a “Recorder” to cull from “Government Information” (reasonably available government documents bearing on the prisoner’s status) the “Government evidence” and present that to a panel. She was obliged to include in the Government Evidence all exculpatory material in the Government Information.

    Was this regulation complied with? The government’s answer is, the court should presume so.

    Given that the prisoner had no conceivable way to put on a case, or even know the government’s case, there is perhaps no more important regulation than that one. And the government never articulated (and still has not) how the Circuit could review whether the reg was complied with, other than to assume that it was.

    The Court expressed the sensible view that the way to determine the answer is to compare the Government Evidence to the Government Information.

    The hysteria in Friday’s declarations is also a little hard to square with what the Court was told months ago — that the recorder and “case teams” in fact did review the “Government Information,” and cull from it the Government Evidence. If they did this 558 times in six months, what exactly is the problem now? No one explains.

    The Court will have known that there is powerful evidence of innocence in both Bismullah and Parhat. Bismullah was a US ally, one of many victims of the bounty system and Afghanistan’s impenetrable tribal grudges; senior officials of the Karzai government presented US military commanders with compelling evidence of his innocence. Did the Recorder review this, and present it to the panel? The Parhat petitioners were repeatedly assured of their innocence by US military officials in 2002, 2003 and 2006, and we believe that US representatives made similar admissions to foreign governments in efforts to repatriate them. Was this exculpatory material reviewed in the Government Information by the Recorder, and included in the Government Evidence?

    Under the government’s theory of DTA review, the Court has no business inquiring.

    That leads to a fundamental problem for the Government’s position. It is that the third branch of government must give its imprimatur to the acts of the first, on the basis of nothing more than a presumption. Such an act would simply abandon the independence of the third branch.

    Our clients are now within a few months of the anniversary of the day they were captured and sold to US forces; soon they will begin their seventh year of captivity.

    Sabin Willett

    Comment by Swillett — September 8, 2007 @ 1:47 pm

  7. Sabin Willet said:

    “Under the government’s theory of DTA review, the Court has no business inquiring…. That leads to a fundamental problem for the Government’s position. It is that the third branch of government must give its imprimatur to the acts of the first, on the basis of nothing more than a presumption. Such an act would simply abandon the independence of the third branch.”

    I would characterize the government’s position as a problem, in the sense that i don’t think that a law that limits the independence of the judiciary by calling for a very narrow review process is a good law. It’s not the kind of law that makes our country stronger, since it doesn’t help us get at the truth of the accusations.

    But, i don’t think that constitutes a ‘fundamental’ problem for the government, because the government could be correct that the DTA does indeed instruct the Circuit Court to conduct nothing but the narrow kind of review that the government says it should.

    In which case, well that’s the law, whether i like it or not. There are a lot of laws that i don’t like, i.e., don’t think should have been passed, but that’s part of living in a democracy - your (or my) side doesn’t always get its way in terms of public policy. Sometimes the other side has more votes.

    Comment by steve jaros — September 8, 2007 @ 8:19 pm

  8. It seems that the Bush Administration’s battle to assert unilateral unchecked privilege to preclude court review of its actions is reaching a climax. I hope detainees’ counsel remain steadfast in the face of the momentous challenge they face.

    Perhaps we could take a step away from the precipice and consider what would have been the case if a non-US person were captured in Afghanistan during US military operations and determined soon thereafter (rightfully or wrongfully) to be a combatant member of an irregular force. Under military law, what would have been the course of proceedings, to what extent would the classified information issues now sub judice have arisen, and how would they have been dealt with?

    Comment by Roger Friedman — September 9, 2007 @ 11:32 am

Leave a comment