Source: scotusblog
http://www.scotusblog.com/movabletype/archives/2006/01/a_new_front_in.html#more

January 13, 2006
Posted Lyle Denniston

The rapidly escalating courthouse battle over the cases of foreign nationals being held by the U.S. military as terrorism suspects has broken out in a new skirmish. The Justice Department and attorneys for detainees are fighting over the role the D.C. Circuit Court should play while the Supreme Court is weighing the judiciary's authority to rule on all detainees' cases.

The Justice Department, of course, on Thursday asked the Supreme Court to dismiss the detainee case pending there -- Hamdan v. Rumsfeld (05-184) -- on the theory that Congress' passage of the Detainee Treatment Act of 2005 scuttles all cases now under review at all levels of the federal courts. It asked for an immediate dismissal of that case.

But, it now turns out, the Department on Thursday also suggested that the D.C. Circuit carry on a simultaneous review of the jurisdictional issues raised by the new Act. In fact, the Department urged the appeals court not to dismiss the two packets of cases it has already heard regarding Guantanamo Bay prisoners' challenges to their detention. Instead, the Department said, it should proceed to an "immediate and expedited resolution" of what it called "threshold" or "primary" issues that are now in the pending cases at the Circuit Court, and will remain there even under the new Detainee Act. Those issues, over which the Circuit Court will not lose its jurisdiction, according to the government, are whether detainees have any legal rights, and, if they do, whether the status review tribunals now deciding on continued detention at Guantanamo satisfy any such rights.

This was the government's response to a motion filed on Tuesday by detainees' lawyers, urging the Circuit Court to defer briefs it had ordered on the jurisdictional issue, until after the Supreme Court had dealt with that question in the Hamdan case. (Under the appeals court's supplemental briefing order, both sides have been due to file their papers next Wednesday. Whether that date will stand in the face of the new dispute was unknown Friday evening.)

The detainees' attorneys promptly objected on Friday to the Department's new suggestion that the Circuit Court go ahead with the briefing and with review of the jurisdictional issue. Those lawyers, in a reply to the Circuit Court, called it "astonishing" that the government did not inform the Circuit Court that it was filing its dismissal motion in the Supreme Court, spelling out its arguments about the impact of the Detainee Act on pending cases. "The Supreme Court is already seized of the matter by virtue of the [Department's] own motion to dismiss," they said.

They also disputed the Department's suggestion that it would serve the courts better if the D.C. Circuit goes ahead on the jurisdictional question. That, the attorneys for the captives said, "is not credible" because the losing side on that issue in the D.C. Circuit will take it on to the Supreme Court, and the outcome would be resolved based on what the Justices do in the Hamdan case on the meaning of the Detainee Act. It would be a waste, detainees' counsel said, for the D.C. Circuit "to adjudicate the very same jurisdictional issues the Supreme Court is virtually certain to address."

Those lawyers also challenged the government's proposal that the Circuit Court go ahead to decide the constitutional issues, on the theory that the Detainee Act allows it to do so. That, these lawyers said, is a "strained interpretation" of the new Act, and one that the Circuit Court need not consider at this point.

The Justice Department's argument for simultaneous review in the appeals court and the Supreme Court on the jurisdictional question included a statement that the District Courts in Washington -- where detainees' challenges begin -- need guidance on pending cases involving more than 300 detainees and in which there are many outstanding orders. The government amde clear that, since it contends that the District Courts will lose all jurisdiction over detainees' cases under the new law, the government should be relieved of all such orders.

This multi-court battle over jurisdiction also had been playing out earlier in the District Courts, as well. But judges there have begun putting holds on those cases while the Circuit Court sorts out the question of the courts' authority undeer the Act. The Justice Department said in its Thursday filing that the office of the chief judge of the District Court had informed the Department that the judges at that level had conferred and it was "the sense of the Court" that any motions in detainee cases should now be deferred until after the D.C. Circuit rules on the Act's impact.

If the added briefing ordered by the Circuit Court goes forward, the Department said, it accepted the alternative proposal of the detainees' lawyers that both sides should not file those briefs simultaneously, but that the government's brief should be due Wednesday, with the detainees' response a week later, and a government reply Feb. 1.


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