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Nos. 06-1195 and 06-1196

 

In the Supreme Court of the United States

LAKHDAR BOUMEDIENE, ET AL., PETITIONERS

v.

GEORGE W. BUSH,
PRESIDENT OF THE UNITED STATES, ET AL.

KHALED A.F. AL ODAH, NEXT FRIEND OF
FAWZI KHALID ABDULLAH FAHAD AL ODAH, ET AL., PETITIONERS

v.

UNITED STATES OF AMERICA, ET AL.

ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

MOTION FOR LEAVE TO FILE SUPPLEMENTAL BRIEF AND SUPPLEMENTAL BRIEF FOR RESPONDENTS

PAUL D. CLEMENT
Solicitor General
Counsel of Record
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

In the Supreme Court of the United States

No. 06-1195

LAKHDAR BOUMEDIENE, ET AL., PETITIONERS

v.

GEORGE W. BUSH,
PRESIDENT OF THE UNITED STATES, ET AL.

No. 06-1196

KHALED A.F. AL ODAH, NEXT FRIEND OF
FAWZI KHALID ABDULLAH FAHAD AL ODAH, ET AL., PETITIONERS

v.

UNITED STATES OF AMERICA, ET AL.

ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

MOTION FOR LEAVE TO FILE SUPPLEMENTAL BRIEF

On March 17, 2008, this Court granted petitioners' motion for leave to file a second post-argument supple mental brief. Respondents respectfully move for leave to file the attached supplemental brief responding to petitioners' brief.

Respectfully submitted.

PAUL D. CLEMENT
Solicitor General

 

 

MARCH 2008

 

In the Supreme Court of the United States

No. 06-1195

LAKHDAR BOUMEDIENE, ET AL., PETITIONERS

v.

GEORGE W. BUSH,
PRESIDENT OF THE UNITED STATES, ET AL.

No. 06-1196

KHALED A.F. AL ODAH, NEXT FRIEND OF
FAWZI KHALID ABDULLAH FAHAD AL ODAH, ET AL., PETITIONERS

v.

UNITED STATES OF AMERICA, ET AL.

ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

SUPPLEMENTAL BRIEF FOR RESPONDENTS

Respondents submit this supplemental brief in re sponse to petitioners' supplemental brief addressing the District of Columbia Circuit's denial of rehearing en banc in Bismullah v. Gates, 501 F.3d 178 (2007), reh'g denied, 503 F.3d 137 (2007), and 514 F.3d 1291 (2008), petition for cert. pending, No. 07-1054 (filed Feb. 14, 2008), and the government's brief in Parhat v. Gates, No. 06-1397 (D.C. Cir. filed Feb. 7, 2008). According to petitioners, those developments show that review under the Detainee Treatment Act of 2005 (DTA), Pub. L. No. 109-148, Tit. X, 119 Stat. 2739, is inadequate. Petition ers are incorrect, and the developments they cite in no way undermine the adequacy of DTA review, which was fully explained in the government's principal brief (at 40-61). Moreover, the implicit assumption on which peti tioners' supplemental brief rests-that there is a well- understood, litigation-tested, and undisputed set of ha beas procedures well adapted to this unprecedented situation-is unfounded.

1. Petitioners argue (Supp. Br. 1)1 that the opinions accompanying the court of appeals' denial of rehearing in Bismullah demonstrate "the fundamental unfairness" of the procedures used by Combatant Status Review Tribunals (CSRTs) and "the inadequacy of DTA review as a substitute for common law habeas." Statements respecting the denial of rehearing en banc of course cre ate no new law. And nothing in the Bismullah panel opinion, which was available and cited during the merits briefing in this case last fall-or in the court's denial of rehearing en banc or the government's petition for a writ of certiorari in Bismullah-suggests that the scope of DTA review is inadequate to vindicate whatever rights petitioners may have.

a. To the extent that petitioners repeat their criti cisms of the CSRT procedures, those criticisms lack merit. See Gov't Br. 53-58. More to the point, the pur ported deficiencies in the CSRT procedures have no bearing on whether DTA review is inadequate, because the DTA permits a detainee to challenge any alleged procedural deficiencies in a petition for review. Under the DTA, the District of Columbia Circuit must decide, "to the extent the Constitution and laws of the United States are applicable, whether the * * * [CSRT] stan dards and procedures * * * [are] consistent with the Constitution and laws of the United States." DTA § 1005(e)(2)(C)(ii), 119 Stat. 2742. The court in Bis mullah established a protective order that gives the de tainees' counsel access to classified material and allows counsel to communicate with their clients through a legal-mail system that protects attorney-client privilege. While those rules are not compelled by the terms of the DTA, the court of appeals has adopted them in order to ensure that the DTA review is fair and meaningful. Un der the DTA (and Bismullah), petitioners can present their arguments about the CSRT procedures to the Dis trict of Columbia Circuit, and if the arguments are meri torious, that court will provide relief. That provides a complete answer to petitioners' objections to the CSRT process.

b. Petitioners renew their contention (Supp. Br. 2-4) that review under the DTA is deficient because the CSRT procedures allow the government to control what evidence is considered by the CSRT, and that the lim ited review under the DTA does not permit detainees "to introduce exculpatory evidence" that was not presented to the CSRT. Id. at 3. Petitioners are incorrect.

The CSRT procedures permit detainees to testify, seek the testimony of relevant and reasonably available witnesses, and seek and obtain other relevant and rea sonably available evidence. 06-1196 Pet. App. 143-144. In addition, the recorder is required to present to the CSRT any exculpatory information that is reasonably available. Id. at 165. Petitioners' contention (Supp. Br. 2) that the CSRT record is "a one-sided body * * * of evidence * * * with no meaningful input" from detain ees is therefore a gross mischaracterization of the CSRT procedures. Moreover, petitioners ignore the Depart ment of Defense's procedure regarding "new evidence," which expressly permits submission of exculpatory evi dence that was not presented to the CSRT.

As explained in the government's principal brief (at 56 n.30), if a detainee presents factual information that "was not previously presented to the detainee's CSRT" and that is "material to the factual question of whether the detainee" is an enemy combatant, the Deputy Secre tary of Defense "will direct that a CSRT convene to re consider the basis of the detainee's [enemy combatant] status in light of the new information." See Office for the Administrative Review of the Detention of Enemy Combatants, DoD, OARDEC Instruction 5421.1, Proce dure for Review of "New Evidence" Relating to Enemy Combatant (EC) Status paras. 4(a)(1) and (2), 5(b) (May 7, 2007) <http://www.defenselink.mil/news/May2007/ New%20Evidence%20Instruction.pdf>. The resulting CSRT decision, if adverse to the detainee, would in turn be subject to DTA review. Thus, petitioners' assertion (Supp. Br. 4) that the detainees "are left completely without a remedy" if their CSRTs excluded proffered evidence is incorrect.

c. Petitioners contend (Supp. Br. 4) that the court of appeals' handling of Bismullah demonstrates that DTA review will proceed more slowly than habeas because "the D.C. Circuit will continue to engage in divided, in cremental decisionmaking on threshold procedural is sues," and that "DTA petitions will surely languish for years before the court of appeals reaches the merits in even a single case." That contention lacks merit. There is no reason DTA review cannot proceed expeditiously. Moreover, putting the "habeas" label on these unprece dented proceedings challenging the detention of cap tured enemy combatants (and adding district courts as well as the court of appeals to the mix) will not eliminate the difficult and sensitive legal issues raised by these cases.

Once the basic ground rules for DTA review have been reviewed by this Court in cases like Bismullah, there is no reason why DTA review cannot proceed in a more expeditious fashion. Moreover, even if this Court grants certiorari to review the decision in Bismullah (and grants the government's stay application), DTA review may proceed in the interim on the basis of the classified record of proceedings before the CSRT- which the government has already produced in Bis mullah. For example, expedited merits briefing is al ready proceeding in Parhat on the basis of the classified CSRT record in that case, and the court has scheduled oral argument for April 4. There is no reason that brief ing could not proceed, where appropriate, in other DTA cases.

Likewise, petitioners err in assuming that habeas review of enemy-combatant detentions would be particu larly expeditious. As discussed in the government's principal brief (at 60) and at oral argument (Tr. 40, 49, 70), there is no precedent governing habeas review of aliens detained as enemy combatants outside the sover eign territory of the United States. Accordingly, even if this Court were to determine both that petitioners have a constitutional right to habeas corpus and that the al ternative mechanism for review established by Congress is constitutionally inadequate, a host of threshhold is sues would need to be resolved concerning the nature of the resulting habeas proceedings. For example, the dis trict courts would have to determine whether habeas would involve de novo review of evidence (as opposed to deferential review of the military's enemy-combatant determination); whether detainees would be entitled to discovery, and if so what the scope of such discovery would be; and whether the detainees would be provided access to classified evidence. Those are just a few of many fundamental and unprecedented issues that would be presented by habeas review. Unlike the DTA, which suggests answers to some of these questions, nothing in the habeas statute would provide courts with any guid ance. And there can be little doubt that the district courts' resolution of many, if not all, of those issues would be appealed (by either side). Thus, if anything, habeas proceedings, by involving the district courts, would entail even greater delay than DTA review.

2. Petitioners argue (Supp. Br. 5-6) that the govern ment's brief in Parhat shows that DTA review is not an adequate substitute for habeas. To the contrary, the briefing in Parhat demonstrates that in the context of DTA review, a detainee-represented by counsel with access to the classified CSRT record-can raise the crit ical and fundamental issues bearing on the validity of his detention as an enemy combatant. For instance, Parhat has challenged whether an individual who is not a mem ber of al Qaida or the Taliban, and who purportedly did not intend to support those groups, can nevertheless be detained as an enemy combatant; whether an individ ual who himself does not directly engage in hostilities against the United States can be detained; whether the President's powers under Article II of the Constitution provide an independent basis for Parhat's detention; and whether the appropriate relief under the DTA is remand or release. The resolution of those issues will facilitate the resolution of many other detainees' cases. The DTA therefore provides meaningful review of whether a de tainee is properly held as an enemy combatant.

a. Petitioners object (Supp. Br. 5-6) that the govern ment has sought deferential review of the CSRTs' fac tual determinations. In their view, such review is an in adequate substitute for habeas. But as explained in the government's principal brief (at 43-46, 58-59), petition ers' conception of common law habeas review-the base line against which the DTA's adequacy must be mea sured-is seriously flawed. Contrary to petitioners' sug gestion (Supp. Br. 6), common law habeas in the context of wartime detentions did not involve "plenary review" but was in fact extraordinarily limited. Indeed, even outside of the military context, habeas review of execu tive detention decisions did not provide plenary review of the facts. Thus, the government's argument in Par hat that the court of appeals should deferentially review the CSRT's factual findings in no way undermines the effectiveness of the DTA as a substitute for habeas re view and is in no way inconsistent with the government's arguments in Boumediene. See Tr. 44-46.

b. Petitioners further argue (Supp. Br. 6-7) that be cause the government contends that the appropriate remedy under the DTA ordinarily would be remand, and because the government has the "alternative" of conven ing new CSRTs, see Bismullah, 503 F.3d at 141, "this structure cannot lead to a judicial order of release and is thus no substitute for habeas." (Supp. Br. 7) That is incorrect.

As the government has explained, the DTA does not expressly authorize the District of Columbia Circuit to order release. If the court of appeals were to find a defi ciency in a CSRT's enemy combatant determination, the court in the first instance should remand the case to the CSRT for new proceedings, consistent with general ad ministrative law principles. See Gov't Br. at 55, Parhat v. Gates, No. 06-1397 (D.C. Cir. filed Feb. 7, 2008); Occi dental Petroleum Corp. v. SEC, 873 F.2d 325, 346-347 (D.C. Cir. 1989) ("proper course" is to "remand the mat ter to the agency for further proceedings" when flaws in the agency's procedures lead to an "inadequa[te] * * * administrative record"). Even in a conventional habeas setting, when a petition is successful, the typical relief is retrial, not outright release. But if the ultimate ability to order release is necessary to ensure the adequacy of the DTA procedures, nothing in the DTA precludes that remedy, and the All Writs Act, 28 U.S.C. 1651, would affirmatively authorize it. See Tr. 35-36.

Whatever the circumstances in which an order of release might be appropriate, a finding that a CSRT record is insufficient to support an enemy combatant determination vel non should not customarily result in such an order. Under the CSRT procedures, in order to protect classified and sensitive information, the Re corder need not present to the Tribunal all of the mate rial supporting a finding that the detainee is an enemy combatant. Rather, the Recorder presents to the CSRT "such evidence in the Government Information as may be sufficient to support the detainee's classification as an enemy combatant." 06-1196 Pet. App. 160, 165. In any given case there may well be additional, but highly sensitive, evidence against a petitioner that was never presented to the CSRT. Accordingly, in the event of an appellate finding of insufficient evidence, the Depart ment of Defense should have an opportunity on remand to consider whether to submit the additional evidence or discharge the detainee.

As noted, however, if this Court were to determine that the power to order release under the DTA is neces sary to uphold that statute-because, for example, the DTA would be an inadequate substitute for habeas un less it authorized release-then nothing in the DTA pre cludes that relief. See Tr. 35-36. But even if courts are recognized to have the authority to order release, in the ordinary case, remand, rather than release, would be the appropriate remedy when the court finds a deficiency in a CSRT ruling. See Gov't Br. at 54-58, Parhat, supra (No. 06-1397).

More generally, petitioners' effort to use the govern ment's arguments made to a court of appeals that has already accepted the constitutionality of the DTA to undermine the government's arguments in this Court that the DTA can be construed to avoid constitutional difficulty is unavailing. Not only are the cases in funda mentally different postures, but more importantly this Court in resolving the case can resolve definitively what factors DTA review must have to avoid constitutional difficulty. If it does so, it will streamline further litiga tion under the DTA, which should allow for expeditious disposition of the detainees' DTA cases.

3. Finally, petitioners' assertion (Supp. Br. 7) that "DTA petitioners may not actually obtain DTA review at all" is baseless. If review and a stay are denied in Bis mullah, the government would have to decide whether to pursue the alternative option spelled out by the Dis trict of Columbia Circuit of conducting new CSRTs. See Bismullah, 503 F.3d at 141. Even under that scenario, however, petitioners would be able to seek DTA review in the court of appeals if those new CSRTs determine that petitioners are enemy combatants.

Petitioners argue (Supp. Br. 8) that convening new CSRTs would entail the same obligation to collect the Government Information, and therefore the same delay, that the government would face were it to proceed with the current DTA cases under the court of appeals' ruling in Bismullah. Petitioners misunderstand the court of appeals' opinions and the nature of the burdens created by those decisions. In its supplemental opinion on re hearing, the Bismullah panel made clear that the Gov ernment Information it was requiring to be produced was the historical record of "reasonably available" mate rial that was, in fact, reviewed and collected by the Re corder at the time of the tribunals. See Bismullah, 503 F.3d at 141-142. The government, however, has no reli able mechanism for identifying the historical "Govern ment Information." As a result, as the panel acknowl edged, the government was required to "search[] for all relevant information without regard to whether it is rea sonably available," because it "can conceive of no other comprehensive method to ensure that [it] identif[ies] information that the Recorder could have examined." Id. at 141 (citation omitted). The panel also recog nized-"in the Government's defense"-that it was rea sonable that the government did not keep such records at the time. Ibid. ("We note in the Government's de fense that CSRTs made hundreds of status determina tions, including those under review in the present cases, before the DTA was enacted in December 2005 and therefore without knowing what the Congress would later specify concerning the scope and nature of judicial review."). The panel nevertheless held that production of those materials was required under its construction of the DTA and the existing rules governing CSRTs. The panel noted, however, that if the government cannot "reconstruct the Government Information," then the government has an "alternative": "It can abandon its present course of trying to reconstruct the Government Information by surveying all relevant information in its possession without regard to whether that information is reasonably available, and instead convene a new CSRT." Ibid.

Convening new CSRTs, therefore, would not entail a reconstruction of the historical Government Informa tion. As explained in the petition for a writ of certiorari in Bismullah, reconstruction of the historical record, where there is no reliable mechanism of identifying or limiting its contents, is extraordinarily time-consuming and resource intensive, and would "divert a significant portion of [the government's] intelligence, law enforce ment, and military resources." Pet. at 15, Bismullah, supra (No. 07-1054). If the government were now to conduct new CSRTs under the Bismullah decision, it would not be facing the challenge of trying to recon struct a historical record that no longer exists. Rather, the Department of Defense would proceed anew under the then-applicable CSRT rules and gather and retain the material that is called for by the rules and that per tains to the detainee's enemy combatant status. Those inquiries are much less time consuming than the recon struction effort, which, as the court of appeals recog nized, led the government to search "for all relevant information without regard to whether it is reasonably available." Bismullah, 503 F.3d at 141. Moreover, the government would know what its recordkeeping obliga tions were in advance. The government would retain the record when conducting new CSRTs, obviating any need for a post-hoc reconstruction of the record. Convening new CSRTs, therefore, would not involve the same delay that would be required to proceed with the current DTA cases under Bismullah.

* * * * *

For the foregoing reasons, as well as for the reasons stated in our principal brief and first supplemental brief, the judgment of the court of appeals should be affirmed.

Respectfully submitted.

 

 

PAUL D. CLEMENT
Solicitor General

 

 

MARCH 2008

1 References to "Supp. Br." are to the supplemental brief for the Boumediene petitioners, No. 06-1195 (filed Feb. 19, 2008).