The administration of President Barack Obama will appeal a ruling made last week by Judge John Bates of the US District Court for the District of Columbia that allowed detainees being held by the US in Afghanistan to proceed with habeas corpus challenges to their detention. Word of the appeal came April 10 in a motion filed by the US Department of Justice (DoJ) seeking certification of the court's order so that the DoJ can file an interlocutory appeal of the ruling, which approved habeas challenges by four foreign-born detainees being held at Bagram Air Base.

The motion also asked the court to stay the proceedings pending forthcoming appellate review of the case. Solicitor General Elena Kagan granted the case expedited status for review by the US Court of Appeals for the DC Circuit. In seeking a stay of the proceedings during the appellate review process, the DOJ motion concluded:

...any potential for harm to petitioners in continued detention during appellate proceedings does not outweigh the need for a stay. First, the Government intends to seek expedited appellate review of the jurisdictional ruling in the April 2, 2009 Order. Second, the President has established, by Executive Order, a deliberative process to address questions concerning Executive detention authority and options. See Executive Order 13,493: Review of Detention Policy Options, 74 Fed. Reg. 4901 (Jan. 22, 2009). That Executive Order commands the creation of a Special Interagency Task Force to "conduct a comprehensive review of the lawful options available to the Federal Government with respect to the apprehension, detention, trial, transfer, release, or other disposition of individuals captured or apprehended in connection with armed conflicts and counter-terrorism operations, and to identify such options as are consistent with the national security and foreign policy interests of the United States and the interests of justice." Id. ¶ (e). The Task Force is scheduled to provide preliminary reports to the President and a final report by July of this year. Id. In particular, the Task Force will be reviewing the processes currently in place at Bagram and elsewhere, and will make recommendations to the President regarding those processes.

In sum, the extensive harms to the Government and the public interest involved in further proceedings envisioned by the Court in these cases, and the likelihood of respondents’ success on the merits of appeal, strongly warrant a stay pending appeal.

In last week's order, Bates applied a multi-factor test developed by the US Supreme Court in its decision in Boumediene v. Bush for the application of the Constitution's Suspension Clause to hold that the four detainees were entitled to proceed with their habeas challenges.

The DC District Court has been the venue for many habeas challenges, especially for Guantanamo detainees suspected of involvement with terrorism. In December, the court allowed habeas petitions filed by two Guantánamo detainees to proceed until military commission charges against them were referred. Also in December, Judge Richard Leon of the DC District Court ruled that the government could continue to hold two detainees who had filed habeas petitions challenging their detention, finding the government had met its burden of showing that the men were being lawfully detained under the court's definition of "enemy combatant." (Jurist, April 11)

See our last posts on Afghanistan and the detainment scandal.

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