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DOJ Cites National Security Threat in Detainee Cert Petition

By Debra Cassens Weiss

February 15, 2008, 11:57 am CST

The Justice Department has asked the Supreme Court to review an appellate ruling requiring the government to supply extensive information about its designation of more than 180 Guantanamo detainees as enemy combatants.

The government contends the decision by the U.S. Court of Appeals by the District of Columbia Circuit creates a “serious threat to national security,” the New York Times reports. Its petition asks the court either to order expedited review in the case or hold off any action until the court decides another pending case, Boumediene v. Bush, that concerns detainees’ habeas corpus rights.

The government says the appeals court ruling in the new case, Gates v. Bismullah, would require “an enormous outlay of government resources.” The decision said the government must provide the appeals court reviewing a tribunal’s approval of enemy combatant status with all the information the tribunal was “authorized to obtain and consider.”

The government says it no longer has evidence that was not presented to the tribunals. The appeals court’s mandate “exceeds the constitutional requirements recognized by this court in the ordinary criminal context,” its petition says, according to an account on SCOTUSblog. The court’s required “diversion of resources from critical national security duties during ongoing armed conflict threatens national security.”

SCOTUSblog posted the cert petition (PDF), the application for a stay of the appeals court decision (PDF), and the motion to expedite the case (PDF).

The case “amounts to a fundamental test of whether the federal courts will provide a penetrating or only a limited, largely deferential review of military decisions to declare Guantanamo prisoners to be enemies (formally, ‘enemy combatants’),” SCOTUSblog says.

The two detainee cases are intertwined: Bismullah concerns how far the D.C. Circuit can go in reviewing the combatant designation, and Boumediene concerns whether the review provided goes far enough to satisfy the Constitution.