The Supreme Court's June decision in Boumediene v. Bush entitled Gitmo detainees being held as enemy combatants to file habeas corpus petitions to challenge the basis for their detention because, in the majority's judgment, the procedures for judicial review of Combatant Status Review Tribunal (CSRT) enemy combatant status determinations set forth in the Detainee Treatment Act (DTA) and Military Commissions Act (MCA) were not an adequate substitute for habeas. But what about Gitmo detainees who have had CSRTs and want to take advantage of the judicial review provisions of the DTA and MCA? That question is presented by the government's rehearing petition in Bismullah v. Gates.
The DC Circuit panel decision in Bismullah, which was handed down before the Supremes decided Boumediene, held that detainees' lawyers (who have security clearances) have a presumptive right to see all the evidence adduced to support a CSRT enemy combatant status determination. Otherwise, the court thought, it could not discharge its appellate duties under the law.
That was then, says the government. Now that the Supreme Court has said that statutory judicial review of the CSRT system is constitutionally inadequate, the whole system disappears in a puff of logic, and so detainees like Bismullah should simply file habeas petitions. But the petitioners say that the CSRT determination was an important predicate for their detention and, perhaps more importantly, dismissing and starting over with a habeas petition would just further run the clock. For a summary, with links, of the latest wrangling, check out this entry by Lyle Denniston on Scotusblog.
Whatever the exact merits of the respective arguments here, there does seem an overriding principle that cuts against the government, and it must surely be a cousin of the great principle recognized in that old 19th century chestnut, Riggs v. Palmer. There, the NY Court of Appeals denied to 16-year-old Elmer the legacy to which he would otherwise have been entitled under his grandfather's will, on the ground that Elmer had murdered his grandfather to obtain the inheritance. The case is frequently cited as an application of the maxim "no one should profit from his own wrong." Extension of this maxim to the government is but a small step, and would seem to be completely appropriate in Bismullah.
Posted by Mike Dorf