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DC Circuit rejects 'enemy combatant' status review in favor of habeas remedy

By Bernard Hibbitts (editor) and University of Pittsburgh School of Law students.

[JURIST] The US Court of Appeals for the District of Columbia Circuit ruled on rehearing Friday that it had no jurisdiction over Guantanamo detainees' petitions for subject-matter review of "enemy combatant" status decisions by Combatant Status Review Tribunals (CSRT) in the wake of the US Supreme Court's ruling last year in Boumediene v. Bush that found a governing part of the Detainee Treatment Act (DTA) unconstitutional. Agreeing with the government in a case which originally arose in 2007 before Boumediene was decided, Judge Douglas Ginsburg wrote that the subject-matter review provision in the DTA was inextricably linked to the provision eliminating habeas corpus jurisdiction that had been rejected by the high court: Both the text of the relevant provisions and the enactment of successive jurisdiction-stripping provisions demonstrate clearly that the Congress would not in the DTA have given this court jurisdiction to review CSRT determinations had it known its attempt to remove the courts' jurisdiction over habeas petitions would fail. The court remitted the petitions for habeas corpus determinations. In November, the court signaled the outcome of this case when it suspended its review of Guantanamo Bay detainee Yasin Muhammed Basardh's status as an "enemy combatant," saying it might lack jurisdiction. Reasoning that having dual forms of review would be redundant and contrary to both the intent of the DTA and the Supreme Court's ruling, the court wrote then:There is no rational reason why, if Congress had known that habeas jurisdiction had to be preserved, it would have also wanted to give Guantanamo detainees the option of bringing a simultaneous action directly in the court of appeals. Congress designed the direct review regime to limit judicial intervention and to consolidate review in one forum......We believe there is a high probability that a consequence of Boumediene's striking down the legislative bar against habeas jurisdiction is that the direct judicial review provision of the Detainee Treatment Act fell as well. It has long been the rule that if separate statutory provisions are so “dependent on each other, as conditions, considerations, or compensations for each other as to warrant a belief that the legislature intended them as a whole, and that, if all could not be carried into effect, the legislature would not pass the residue independently, and some parts are unconstitutional, all the provisions which are thus dependent, conditional, or connected must fall with them.”

Full post as published by JURIST - The Paper Chase on January 09, 2009 (boomark / email).