D.C. Circuit Ruling Blow To Bush Administration

The Detainee Treatment Act and Military Commissions Act give the United States Court of Appeals for the D.C. Circuit the power to review Combat Status Review Tribunal decisions in which Guantanamo Bay detainees are determined to be enemy combatants.

The government envisions these reviews basically as other court appeals that consider evidence actually presented by a military prosecutor to the tribunal in a hearing based on the transcript of the hearing. The D.C. Circuit disagreed. It is acting more like a habeas corpus trial court, permitting discovery far beyond the scope of what was actually presented to the tribunal, and instead, including matters that could have been presented to the tribunal, but were not.

The decision, written by the Chief Judge of the D.C. Circuit, is the right one. Essentially, the gross absence of due process protections in the tribunal process itself, means that meaningful review is possible only by looking beyond the matters presented to the tribunal so the reviewing court can determine if the government lived up to its pre-hearing obligation (within the rules of the Combat Status Review Tribunals) to make available exculpatory evidence.

Inquisitorial tribunals need to be reviewed differently from adversarial ones.

The decision is a huge blow to the government. It is an end run around a position it has taken consistently for five years that enemy combatant decisions are fundamentally a matter for the executive branch. Congress wouldn't let it out of ultimate review by an Article III court, and the judges on that court, while not usually a trial court, havve decided to do what is necessary for a first instance Article III court review process.

The number of people impacted by Guantanamo Bay proceedures is small, just a few hundred in the midst of wars that have killed tens of thousands of Iraqis and Afghanis. But, it is a signature policy of the administration's war and terrorism policy, and it is the most blatant example of administration abandonment of the rule of law, which has resulted in immense international pressure. For the government to fail to achieve its ends here is to declare its anti-terrorism policy to be fundamentally flawed.

Meanwhile, the U.S. Supreme Court, in a once in a generation move, has reconsidered its decision to deny certioriari to the D.C. Court determination that the Military Commission Act of 2006 constitutionally suspends the writ of habeas corpus in Guantanamo Bay. Given the Supreme Court's ruling on an almost identical issue, and dicta that went further which the D.C. Circuit ruling ignored, reversal of this decision and a finding that the Military Commission Act of 2006's jurisdiction stripping provisions are unconstitutional as applied in this case is writing on the wall.

In the face of this, the Bush Administration, by outside accounts, seems poised to shut down Guantanamo and move the detainees to facility on American soil, where jurisdiction stripping seems almost certain to be unconstitutional.

Essentially, the federal courts have allowed the administration five years to ignore the law with impunity to fight terrorism and seek Congressional backing, but the free pass has almost expired, now that, with hindsight, it is clear that neither Guantanamo Bay, nor enemy combatant detentions in the domestic United States, are necessary to national security.

The fight in the end game will be between the President and the courts and detainee litigants, over what precedents will remain on the books for the next war.