Gavel Grab

Gitmo Jurisdiction Gets More Complicated

The D.C. circuit released an order on Friday that re-instated the prior Bismullah holdings that the government alleged had been invalidated by the recent Boumediene case handed down by the Supreme Court. 

Essentially this reopens a second level of review of detainee status.  While Boumediene allows for a full review of a detainee’s motion for habeas corpus, the Bismullah cases granted the right to challenge the Pentagon’s initial “Combat Status Review Tribunals (CSRT),” including the use of information that wasn’t available to the tribunal at the time it met. 

The court gave no indication of why the order was handed down Friday, and there is still a motion by the Defense Department to put all review of this sort on hold until the the habeas cases have concluded.  There’s no indication of when (or if) the circuit court will rule on that motion.

SCOTUSBlog’s Lyle Denniston has the full story here, and you can view the court’s brief order here.

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New Habeas Dispute Is 'Winding Up'

This  Scotusblog article, “Escalating the Parhat Case,” analyzes how the case of Chinese Muslim Huzaifa Parhat, who is being held in Guantanamo, is sparking a new dispute over habeas corpus, as it applies to detainees in the war on terror.
According to author Lyle Denniston, the question is how much latitude the government has to hold a detainee while a court case is “winding up” or “winding down,” i.e., before or after a federal court rules on a specific case.

As Denniston writes:

“The Justice and Defense Departments are using the case to test anew their theory that the U.S. government has very broad constitutional authority — beyond the reach of the courts — to “wind up” (or “wind down”) the process of detention in a way that would mean that individual detainees, even though found not to be enemies (Parhat’s situation), would remain for extended periods at Guantanamo in a kind of legal limbo.

Parhat’s lawyers argue that this vaguely defined authority violates the essence of the Supreme Court’s Boumediene v. Bush ruling, which entitled detainees to federal court review of their confinement.

Denniston’s full story is here.

Gavel Grab has written other articles on Parhat’s case. You can find them here and here.

Other useful resources: a U.S. District Court  information page and schedule for Guantanamo cases; Justice at Stake’s recap of 2008 activity, and “Courting Danger,” Justice at Stake’s review of civil liberties and the war on terror.

A fuller excerpt of Denniston’s article, capturing the constitutional issues, follows:

But something else of deep constitutional significance is lurking in Parhat’s court case. The Justice and Defense Departments are using the case to test anew their theory that the U.S. government has very broad Read more

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More ambiguity stemming from Boumediene

SCOTUSBlog posted an item last week entitled (aptly) “What did Boumediene strike down?”  The posting explores an ambiguity created by the controversial ruling – best known for returning habeas corpus rights to Guantanamo Bay detainees – over what law was actually struck down.

The Boumediene opinion states explicitly that “The only law we identify as unconstitutional is MCA Sec. 7, 28 USCA 2241(e)(Supp. 2007).” That seems straightforward enough, but there are actually two parts to section 7(e).  The first section eliminated federal court review of the detainees’ status as “enemy combatants.”  The second section pertains to the courts’ ability to hear “other claims” by detainees in Guantanamo Bay. 

Judge Urbina, of the District Court of the District of Columbia, found that while there may be a colorable argument that the Boumediene decision invalidated both portions of section 7(e), this was not argued by the lawyers for the detainees and at present he could only find – as argued by the justice department – that the first portion of section 7(e) had been invalidated by the Supreme court. 

To read the full analysis by Lyle Denniston look here.

This is certain to be litigated further, and we’ll keep you up to date here at Gavel Grab.

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You can't go home and you can't stay here

SCOTUSBlog reported yesterday that the Justice Department has made a new plea in the D.C. Circuit requesting that the court formally announce that it has not authorized the movement of any Guantanamo Bay prisoner to the mainland U.S. This comes on the heels of the federal government dropping its opposition to Huzaifa Parhat‘s habeas petitions.

We’ve previously kept you updated on the ongoing Parhat saga, in which Parhat was declared an enemy combatant and held for years in Guantanamo Bay even after the federal government acknowledged that, “It is undisputed that he is not a member of al Qaida or the Taliban, and that he has never participated in any hostile action against the United States or its allies.”

Since Parhat can’t be sent back to his native China (he is a Muslim activist), and the Justice Department is vigorously objecting to his being allowed to enter the U.S., it remains unclear how things will eventually turn out.

Read more coverage of the story on SCOTUSBlog here, and in the Washington Post here.

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Boumediene, in the Justices' Words

Commentary continues on last week’s Supreme Court ruling in the Boumediene habeas case, but it’s worth taking a moment to review some of the central remarks of the justices themselves.

Rita C. Aguilar, Justice at Stake’s director of federal courts programs  and legislative counsel, identified three quotes from Justice Anthony M. Kennedy’s majority opinion that address the role of the Constitution in the fight against terrorists.

“The Laws and Constitution are designed to survive, and remain in force, in extraordinary times.  Liberty and security can be reconciled; and in our system they are reconciled within the framework of law. The Framers decided that habeas corpus, a right of first importance, must be part of that framework, a part of that law.” [Page 70, majority opinion]. 

Security subsists, too, in fidelity to freedom’s first principles. Chief among these are freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to the separation of powers. It is from these principles that the judicial authority to consider petitions for habeas corpus relief derives.” [Page 8, syllabus]

Our opinion does not undermine the Executive’s powers as Commander in Chief. On the contrary, the exercise of those powers is vindicated, not eroded, when confirmed by the Judicial Branch. Within the Constitution’s separation-of-powers structure, few exercises of judicial power are as legitimate or as necessary as the responsibility to hear challenges to the authority of the Executive to imprison a person.[Page 69, majority opinion]

For the full Supreme Court opinion, click here. For Justice at Stake’s comment on the Boumediene case, click here. You can also download Justice at Stake’s report, “Courting Danger: How the War on Terror has Sapped the Power of Our Courts to Protect Our Constitutional Liberties.” 

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Merit Selection Endorsed by a Few Newspapers, and More Reaction to Boumediene

Quite a few noteworthy stories that we will cover today.

This editorial from the Charlotte Observer explains why there is a need for merit selection in Carolina courts.

Meanwhile in Wisconsin, the Wisconsin State Journal shares the Observer’s feelings on merit selection, and would like to see it implemented in Wisconsin. While Shark and Shepherd critiques Journal’s views on merit selection.

Lastly, Jonathan Hafetz of the Brennan Center, gives his view on the Boumediene decision and the messages that should come from the decision, as well as what the decision did not answer.

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A Conservative’s Defense of Habeas

George Will’s column today affirms the Writ of Habeas Corpus, from a conservative perspective. He chides the most strident critics of last week’s Supreme Court ruling in the Boumediene case.

 Here is a link to Will’s column, which includes the following statement: “No state power is more fearsome than the power to imprison. Hence the habeas right has been at the heart of the centuries-long struggle to constrain governments, a struggle in which the greatest event was the writing of America’s Constitution, which limits Congress’s power to revoke habeas corpus to periods of rebellion or invasion.”

Thoughts or comments?

Also, a Justice at Stake report, “Courting Danger,” discusses the proper role of the judiciary, and our constitutional rights, in the fight against terrorists. For the full report, click here.

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A Conservative’s Defense of Habeas

George Will’s column today affirms the Writ of Habeas Corpus, from a conservative perspective. He chides the most strident critics of last week’s Supreme Court ruling in the Boumediene case.

 Here is a link to Will’s column, which includes the following statement: “No state power is more fearsome than the power to imprison. Hence the habeas right has been at the heart of the centuries-long struggle to constrain governments, a struggle in which the greatest event was the writing of America’s Constitution, which limits Congress’s power to revoke habeas corpus to periods of rebellion or invasion.”

Thoughts or comments?

Also, a Justice at Stake report, “Courting Danger,” discusses the proper role of the judiciary, and our constitutional rights, in the fight against terrorists. For the full report, click here.

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3/26/08: Around the Blogosphere

Judicial Elections Are Stupid – This Is Here Is No Why
This blog posts attempts to answer why judicial elections are stupid. Interesting read as it also ties in the Wisconsin Supreme court campaigns of hte last two years.

Read more…

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2/6/08 – Minority Enrollment at Law School Drops, Bush Throws New Wrench in Guantanamo Cases, WI Needs Merit Selection Now More Than Ever, Pres. Candidates on Fed. Judicial Appointments

Minority Enrollment at Law Schools Is Faltering – The National Law Journal
Columbia Law School’s new minority enrollment tracking web site shows that minority enrollment is down and may continue to drop.

A 2nd Case on Detainees Complicates Deliberations – The New York Times
Months after the Supreme Court heard Boumediene v. Bush, the Administration says it will 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.

Dollars and debate take their toll – The Wisconsin State Journal
The Wisconsin State Journal’s Editorial Board argues that last weeks heated debate between two candidates running for the state Supreme Court only strengthens the argument for merit selection.

Good Judgment – The Wall Street Journal
A survey conducted by the Federalist Society asks the presidential candidates how they would approach the appointments of hundreds of federal judges. Three candidates, including John McCain, Mitt Romney, Mike Huckabee and Ron Paul replied to the survey.

Click here for more news on fair and impartial courts issues from the Brennan Center for Justice E-lerts.

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