Friday, January 11, 2008

Detainee's (Lack of) Rights

The DC Circuit today issued two rulings that significantly bolster the Bush Administration's legal posture regarding Guantanamo Bay detainees. As detailed at SCOTUS blog, the Appeals Court rejected arguments from current and former detainees:
  • they have no right to sue top Pentagon officials and military officers for allegedly torturing them and defiling their religious beliefs while at Gitmo.

  • they could not force the Pentagon to release to the public the opinions or advice that outsiders gave to the government on the creation of “military commissions” to try war crimes charges.
The rulings are here — Rasul, et al., v. Myers, et al. (Circuit docket No. 06-5209) (rejecting the torture and abuse claims), and National Institute of Military Justice v. Department of Defense (Circuit docket No. 06-5242) (finding the documents from non-government consultants fell within Exemption 5 to the Freedom of Information Act as “intra-agency memorandums or letters”). The first ruling was unanimous (albeit with a 2-1 split in a portion of the rationale); the second was a 2-1 with a dissent by Judge Tatel.

The first decision is the more weighty. It considered and rejected various arguments under international, Constitutional and statutory law, reiterating that Aliens held outside sovereign U.S. territory are not covered by the Constitution, the very issue under review by the Supreme Court in two controversial pending cases on detainees’ legal rights, Boumediene v. Bush, 06-1195, and Al Odah v. United States, 06-1196. I'll have more on this later, including addressing whether the holding is relevant to José Padilla's recent suit against former DOJ lawyer John Yoo.

(some hyperlinks added 8:15pm)

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