The lawyers asserted, in a brief filed Wednesday, that the stay the administration is seeking of a lower court’s order “would, once again, freeze judicial review of cases in which that review is years overdue.”
“The human cost of further delay is simply too great,” the brief said.
The justices are most likely to act on the case promptly, perhaps as early as Friday.
Seven of the eight detainees represented in the brief are now in their seventh year of incarceration and the eighth, Haji Bismullah, is in his fifth. In 2006, all eight filed appeals in the United States Court of Appeals for the District of Columbia, under procedures set out in the Detainee Treatment Act of 2005, challenging their designation as enemy combatants, made by military panels at Guantánamo called combatant status review tribunals. Some 180 other detainees have similar appeals pending.
But the appeals have been mired in a dispute over the kind of evidence the government must supply to enable the appeals court to evaluate the validity of the enemy-combatant designations.
The appeals court, in a decision last July, said it needed to see not only the evidence actually presented to the tribunals, but also any other evidence that the government had compiled that is “reasonably available.” Without all the evidence, the appeals court said, it could not perform the appellate function assigned to it by Congress in the Detainee Treatment Act.
But the administration told the Supreme Court in a brief filed last week that the decision would “impose extraordinary compliance burdens” and create a “serious threat to national security.” The administration asked the justices to grant a stay of the decision and to hear an appeal on an expedited basis later this spring. The case is Gates v. Bismullah, No. 07-1054.
Mr. Bismullah, an Afghan and former provincial official with a history of opposition to the Taliban, was picked up by United States forces in early 2003 and sent to Guantánamo. He asserted that he was the innocent victim of a tribal feud.
A number of United States military and diplomatic officials, including the American ambassador, Zalmay Khalilzad, vouched for him and urged his release. But none of their statements were presented to the combatant status review tribunal that found him to be an enemy combatant. Recounting this history in the Supreme Court brief, his lawyers say that this is the type of evidence the D.C. Circuit should be able to consider in an appeal.
The other seven detainees are all Chinese Uighurs, members of a minority Muslim group who had fled China and were living in Pakistan when bounty hunters turned them over to the United States military in mid-2002. They also assert that they were not involved in hostilities against the United States, and that evidence demonstrating their innocence was never presented to the tribunals.
In the appeal it filed last week, the administration asked the Supreme Court to grant review of the D.C. Circuit’s decision and to hear the case in time to rule on it during the current term, along with the other Guantánamo case, Boumediene v. Bush, that was argued in December. The Boumediene case challenges Congress’s stripping of the federal courts’ jurisdiction to hear habeas corpus petitions from the detainees.
The detainees’ lawyers told the court in the new brief that the appeals court’s ruling was “certainly correct” as an interpretation of the Detainee Treatment Act and did not merit Supreme Court review. The government was only seeking “to prevent the court of appeals from carrying out its Congressionally mandated review function by improperly limiting the record on review,” the brief said.
But the lawyers added that if the court does decide to hear the administration’s appeal, it should do so on an expedited basis, as the administration requested, so as to avoid delaying the appeals process even further.
Source: http://www.nytimes.com/2008/02/22/us/22scotus.html?th&emc=th
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