The Terror Detainee Case: What the Blawggers are Saying and a Peek at Some Documents.

 posted by Damozel |  The justices did not say what had changed their minds," says Washington Post.  The Supreme Court has decided (after first deciding otherwise) to hear a case---two consolidated cases really---which "challenge[s] the Bush administration's position that the fates of hundreds of detainees held at the U.S. naval base in Cuba as alleged terrorists is best handled by military tribunals rather than the U.S. courts" (Washington Post) .

I've been combing through various law blogs to see what the lawyers among us have to say about this rethink (which is apparently highly unusual).(The Volohk Conspiracy; see Law.Com & The Wall Street Journal) Says Professor Orrin Kerr, writing at The Volokh Conspiracy, "What's remarkable about this isn't that the Supreme Court agreed to hear them, but that the Court first denied certiorari,...then granted a petition for rehearing." SCOTUSblog states that such a switch may not have occurred since the 1947 case, Hickman v. Taylor, 329 U.S. 495.(SCOTUSblog)  Professor Kerr speculates that this extremely unusual re-decision probably indicates that reversal is likely.(The Volohk Conspiracy)

While we can't know why the Court changed its mind, looking at the underlying documents and at the theories suggested by the "blawgs" provides interesting food for thought and speculation.

Under the Court's rules, it takes five justices to grant a rehearing. (SCOTUSblog)  In April, only three judges voted to hear the case; however Justices Stevens and Kennedy voted to refuse the petition because they wanted the detainees to try to get relief in the D.C. Circuit Court, "which under the Detainee Treatment Act has the authority to provide limited review of military decisions to continue holding Guantanamo prisoners as "enemy combatants."  (SCOTUSblog) 

Specifically, Justice Stevens wrote that "despite the obvious importance of the issues raised in the cases, we are persuaded that traditional rules governing our decision of constitutional questions...and our practice of requiring the exhaustion of available remedies as a precondition to accepting jurisdiction over applications for the writ of habeas corpus..., make it appropriate to deny these petitions at this time. Boumediene v. Bush, 549 U.S. ___ (2007)(Stevens, J) (cites omitted; emphasis mine).  But this opinion further states further states::

However, “[t]his Court has frequently recognized that the policy underlying the exhaustion-of-remedies doctrine does not require the exhaustion of inadequate remedies.”...If petitioners later seek to establish that the Government has unreasonably delayed proceedings under the Detainee Treatment Act of 2005....or some other and ongoing injury, alternative means exist for us to consider our jurisdiction over the allegations made by petitioners before the Court of Appeals. Were the Government to take additional steps to prejudice the position of petitioners in seeking review in this Court,... this Court, “should act promptly to ensure that the...purposes of the writ of habeas corpus are not compromised.” Boumediene v. Bush, 549 U.S. ___ (2007)(Stevens, J) (cites omitted)

The Court grants rehearing only "if there has been a change in "intervening circumstances of a substantial or controlling effect" or if counsel can cite "substantial grounds not previously presented.""  (SCOTUSblog) 

In their petition for rehearing, the detainees' lawyers stated that  "The pursuit of D[etainee] T[reatement] A[ct]  remedies in the coming months by Petitioners and other detainees constitutes an “intervening circumstance[] of a substantial or controlling effect” and will also give rise to “other substantial grounds not previously presented." ( 2)   In their petition, they state as one ground that "the inadequacy of the DTA review is likely to be demonstrated in the very near future." (petition for rehearing at 3)   In their reply to the government's opposition, they detainees' lawyers state that events subsequent to the initial denial show that the Court should reconsider that decision. (1) 

In their reply, they argued that proceedings in the DC Court of Appeals would show that the procedure under the Detainees Act is inadequate.  They argue that in Bismullah v. Gates, the government  has "admitted" that under the Detainee Treatment Act the detainees would not be able to develop (or the DC Court of Appeals consider) "plainly exculpatory evidence" or other facts outside the record of the Combatant Status Review Tribunal that would be relevant to their detention. (2).   

They further point out that the government's own view of the limited remedy under the Detainee Treatment Act is that the detainee might become entitled to a "remand for further proceedings" instead of release from imprisonment, the remedy that would be available under habeas corpus. ( 2). 

Under the government's own theory as to the scope and application of the Detainee Treatment Act, if such a remand were then  granted, then it "could"---this is still the detainees' lawyers arguing---lead to the conclusion that the detainee was not an enemy combatant and therefore could eventually lead to the detainee's release. (2).   But not necessarily.  The government could "hold a detainee forever," even if the DC Court of Appeals invalidated the "enemy combatant" status. (2)  In consequence, the procedure in question could not provide the detainees with an adequate remedy.  "This is the inverse of the habeas process, where release is a matter of legal right and not executive grace." (3)   

They further state that not only is the remedy inadequate, but that the underlying tribunal was "an irremediable sham."  (4)   Wow.  "A courageous military officer," they state, came forward to state "[b]ased on his personal experience, first as a factual investigator and then as a member of a [Combatant Status Review Tribunal ] tribunal...that, in every phase, the...process was infected with command influence and an illusion."(4)  Who in the what now?  To try to understand this statement,  I took a look at the attached declaration in order to to better understand the lawyers' arguments.

In his statement, Stephen Abraham, Lieutenant Colonel, United States Army Reserve had a number of things to say about the Office for the Administrative Review of the Detention of Enemy Combatants (“OARDEC”) and the the process by which detainees were determined to be "enemy combatant.:"  I've of course no idea whether or to what extent this decision influenced any of the justices.  Make of it what you will. 

Lietenant Colonel Abraham was a "liaison officer", acting as a go-between for OARDEC and various intelligence organizations  (iii).    He himself has served as a military intelligence officer "from 1982 to the present during periods of both reserve and active duty, including mobilization in 1990 (“Operation Desert Storm”) and twice again following 9-11." In the civilian world, he is an attorney.(i).

His job was "to review and/or obtain information relating to individual subjects" of the tribunals.(iii). "More specifically, I was asked to confirm and represent in a statement to be relied upon by the [tribunal] board members that the organizations did not possess “exculpatory information” relating to the subject of the [tribunal]." (iii).

He says he was one of  "a few intelligence-trained and suitably cleared officers."  (iii).   "The vast majority" of OARDEC personnel were reserve officers from the different branches of services, few of whom had any experience or training in the legal or intelligence fields." The tribunals' "recorders" were typically "junior officers with little training or experience in matters relating to the collection, processing, analyzing, and/or dissemination of intelligence material" (ii).

There was little oversight of the process of collecting evidence in the individual cases by "the recorders."  The information was "aggregated" by persons of equally limited experience in intelligence.  These "case writers" were the persons who were "primarily responsible for accumulating documents, including assembling documents to be used in the drafting of an unclassified summary of the factual basis for the detainee’s designation as an enemy combatant."   (ii).

The information they collected "frequently" consisted (and I don't know what this actually means, but this is what he said) "of finished intelligence products of a generalized nature - often outdated, often “generic,” rarely specifically relating to the individual[s]...or to the circumstances related to those individuals’ status."(ii-iii)   

They also made use of a repository of documents to which was incomplete, in that it did not contain (or the case writers did not have access to?)  material "characterized" as "highly sensitive law enforcement information, highly classified information, or information not voluntarily released by the originating agency."  (iii). The case workers' other data bases, he says, were "similarly deficient" and they  "did not have access to numerous information sources generally available within the intelligence community.(iii).

The content of the "intelligence products" (?), "including data bases," that was made to the case writers, recorders, or liaison officers was left to the discretion of the intelligence organizations that provided them.   In consequence, they wouldn't have had access to any information which was not revealed in the "intelligence products."  (v).  Nor would they know whether they had all the information developed or what, if anything, was omitted (or why). (v). 

He was critical of the content of the information as well.  He says that there was sometimes "no context" for understanding the gathered information.   "Often, information that was gathered was discarded by the case writer or the Recorder because it was considered to be ambiguous, confusing, or poorly written."   (v).    He feels that sometimes the "lack of training or experience" of the case worker or Recorder caused them to reject  some information arbitrarily while accepting other information without any articulable rationale.(v). Quality assurance reviews focused on format and grammar rather than the accuracy of the underlying information. (v-vi).

Part of his job, as previously noted, was to prepare a statement confirming that there was no exculpatory information relating to any individual in the possession of any of the military intelligence organizations with which he was assigned to liaise. (iii).   This proved a problem, he goes on, since when he visited "the participating  organizations", he was given access only to information they had prepared in advance; he wasn't allowed to see anything else or to request  "further searches."  Furthermore he was "given no assurances" that the information he was permitted to examine was complete or included all information from all available sources. (iii-iv). 

On one occasion, when he asked for a written statement from the Office of General Counsel of the  intelligence organization that he that was affirming that no exculpatory information had been withheld, the office denied the request and "refused to acknowledge" that any information existed that he hadn't been allowed to review.(iv).   

He did not know how people were selected to serve on the panels, but he states that panel members reported "ultimately to Rear Admiral McGarrah."  If they determined that an individual was not an enemy combatant, they were required to explain their finding to Rear Admiral McGarrah, who would intensely scrutinize the finding.  Rear Admiral McGarrah who would, in turn, have to explain the finding to his superiors, including the Under Secretary of the Navy  (vi). 

When he was assigned to a panel, he and the other two officers involved determined that the allegations "lacked substance." (vi).  According to him,

What were purported to be specific statements of fact lacked even the most fundamental earmarks of objectively credible evidence. Statements allegedly made by percipient witnesses lacked detail. Reports presented generalized statements in indirect and passive forms without stating thesource of the information or providing a basis for establishing the reliability or the  credibility of the source. Statements of interrogators presented to the panel offered inferences from which we were expected to draw conclusions favoring a finding of “enemy combatant” but that, upon even limited
questioning from the panel, yielded the response from the Recorder, “We’ll have to get back to you. The personal representative did not participate in any meaningful way. ” (vii). 

He and his panel members therefore determined,  "on the basis of the paucity and weakness of the information provided both during and after the...hearing," that there was no factual basis for classifying the individual as an enemy combatant. (vii).  Rear Admiral McGarrah and the Deputy Director questioned this conclusion.  They were ordered to reopen the hearing, but did not change their conclusion. OARDEC then  responded by trying to determine "what went wrong."  He wasn't assigned to any other panels.   (vii).

On this basis, then, the detainees' lawyers argued that the underlying procedure for classifying the detainees as enemy combatants was an "irremediable sham" and that the Detainee Treatment Act couldn't cure "such a sham process." (4).   "No remedy can be an adequate substitute for independent review by a habeas court." (4).   They therefore argued that the detainees should not be required to exhaust their remedies under the Detainee Treatment Act.  (4).  "The review provided under the Detainee Treatment Act of 2005..can never be an adequate substitute for habeas and that there is no reason to delay determining the important question of whether the Military Commissions Act (MCA) deprives the Guantanamo detainees of constitutionally protected rights." (1)

At Law.com, Pete Yost notes that while the justices didn't say why they changed their mind, "last week, lawyers for the detainees filed a statement from a military lawyer in which he described the inadequacy of the process the administration has put forward as an alternative to a full-blown review by civilian courts." (Law.Com)  At SCOTUSblog, Lyle Denniston notes both the lawyers' argument that the process for classification of the detainees was a sham and the argument that the procedure under the Detainees Treatment Act is inadequate.   I don't know whether it is legitimate to infer that one or both of those arguments turned the scale, but something clearly did.

Professor Orrin Kerr points out in his note at The Volohk Conspiracy that he predicted in his testimony before the Senate Committee on the Judiciary that "[a]lthough the Supreme Court denied certiorari in Boumediene for procedural reasons, it seems highly likely that the Court will agree to resolve this issue in a future case."    (You can read his reasons by looking at the blog.)  (The Volohk Conspiracy)

In its order, the Supreme Court stated that it would be "of material assistance to consult any decision" in the two pending cases under the Detainees Treatment Act cited by the detainees' lawyers in their argument (Bismullah, et al., v. Gates, No. 06-1197, and Parhat, et al., v. Gates, No. 06-1397), so supplemental briefing in the Boumediene case "will be scheduled upon the issuance of any decision in those cases." (Certiorari granted )   A commenter at SCOTUSblog finds this statement "beyond strange."

It would be of "material assistance" to "consult any decision" in Bismullah and Parhat?  Well, of course it would -- those are the cases addressing the procedures that SCOTUS originally thought the Boumediene petitioners hadn't exhausted.  (Or, at least, that's what the statement by Kennedy and Stevens implied.)...

I really can't make hide nor hair of this order, or what events may have led to it (what changed, from a legal standpoint, in between the denial of certiorari before and the granting of the rehearing petition today?), or what in the world the DC Circuit -- or any of the lawyers working on DTA cases in the DC Circuit -- is supposed to do in the meantime. It all seems extraordinarily irregular, at least from a procedural standpoint.(comment)

SCOTUSblog sets out the questions presented in the two consolidated cases----Boumediene vs. Bush and Al Odah vs. U.S.---here.

In case you haven't been following, the Supreme Court has twice considered challenges by detainees and twice decided against the Administration. (The Washington Post)    The Bush Administration was pleased when the Court declined to hear this case.  (The Washington Post)  Eric Freedman of Hostra calls this "a stunning victory for the  detainees" and suggests that it clearly reflects "the unease up there" at the Supreme Court."   (The Washington Post)

In his testimony before the Senate Committee on the Judiciary, Professor Kerr discussed the probable outcome if the Court agreed to take the detainee case.

First, it appears likely that the Supreme Court would hold that the writ of habeas corpus must be available to the detainees as a matter of constitutional law. Second, if this is true, then the Constitution requires a judicial forum that provides the detainees with an effective opportunity to test the legality of their detention. It is uncertain but unlikely that the judicial review presently available to the detainees is adequate to satisfy this standard. Taking these two points together, there is a significant possibility that the absence of habeas corpus jurisdiction over the detainee claims at Guantanamo Bay violates the Suspension Clause of the Constitution.(Kerr)

If you're legally minded, have a look.  (Kerr)    In addition, you might also enjoy this article from the Harvard Law Review, recommended by Brannon Denning of "Concurring Opinions."  "It is a marvelous article: clear, brief (considering the issues), and thorough. Further, while the authors have definite opinions about the correct outcomes of various issues, they acknowledge that the issues are difficult and that reasonable minds can differ. This is a welcome change from some scholarship (on this topic in particular) that assumes those who disagree are fools or knaves. If you read only one article about the detainees, read this one." (Concurring Opinions)   FYI, the article---I am quoting from its introduction---argues (among other things) the following:

In the jurisdictional domain, it defends the Supreme Court’s controversial decision in Rasul v. Bush, which interpreted the habeas statute as it then stood to authorize inquiry into the lawfulness of detentions at Guantánamo Bay. The Article also argues, however, that a court would overstep if it read the Constitution as mandating review of detentions of aliens in such wholly foreign locales as Afghanistan or Iraq. Scrutinizing post-Rasul legislation that eliminates habeas for alien detainees and substitutes more limited review in the D.C. Circuit, the Article argues that the resulting scheme is constitutionally valid as applied to most cases in which the D.C. Circuit can exercise review, but invalid insofar as it entirely precludes detainees in the United States or at Guantánamo Bay from challenging their detention or conditions of confinement before a civilian court.(Fallon & Meltzer)

Enjoy, and if any of  you lawyers have any insights or corrections to suggest, feel free. 

LINKED, CITED, OR QUOTED

• Robert Barnes, Justice to Weight Detainee Rights (The Washington Post)
• High Court Agrees to Hear Guantanamo Detainee Cases (The Wall Street Journal)

LAW BLOGS (BLAWGS)

• Lyle Denniston, Court switches, Will Hear Detainee Cases (SCOTUSblog)
• Ben Winograd, Questions Presented in the Detainee Cases (SCOTUSblog)
• Jason Harrow, Materials in the Detainee Cases (SCOTUSblog)
• Pete Yost, Supreme Court Will Consider Guantanamo Bay Detainees' Challenges (Law.Com)
• Orrin Kerr, Supreme Court Agrees to Take Guantanamo Bay Cases  (The Volohk Conspiracy)
• Brannon Denning, Fallon & Meltzer on the Detainee Cases (Concurring Opinions)
• Comment on Lyle Denniston, Court switches, Will Hear Detainee Cases (comment)
• Richard H. Fallon, Jr. & Daniel J. Meltzer, Habeas Corpus Jurisdiction, Substantive Rights, and the War on Terror (Fallon & Meltzer)
   

OTHER MATERIALS

• United States Senate Committee on the Judiciary, testimony of Orrin Kerr (May 22, 2007)(Kerr)
• At SCOTUSblog:  Detainee Order pdf (Certiorari granted in BOUMEDIENE V. BUSH and in AL ODAH V UNITED STATES.
• Boumediene v. Bush, 549 U.S. ___ (2007)(Stevens, J).
• Boumediene v. Bush, 549 U.S. ___ (2007)(Breyer, dissenting)_
• Statement of Justices Stevens and Roberts re: denial of certiorari, 549 U.S. ___ (2007)
• At SCOTUSblog, Boumediene v. Bush, 549 U.S. ___ (2007)(petition for rehearing)
• At SCOTUSblog, Boumediene v. Bush, 549 U.S. ___ (2007)(reply to opposition to petition for rehearing)
• At SCOUTblog, Boumediene v. Bush, 549 U.S. ___ (2007)(reply to opposition to petition for rehearing)