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DOJ Seeks Emergency Supreme Court Appeal in Gitmo Case

By Debra Cassens Weiss

February 6, 2008, 3:15 pm CST

The Justice Department plans to file an emergency petition with the U.S. Supreme Court seeking review of a ruling requiring the government to supply more information about its designation of a Guantanamo detainee as an enemy combatant.

The case, Bismullah v. Gates, concerns how much information the government has to supply when a prisoner who is designated as an enemy combatant appeals to the U.S. Court of Appeals for the District of Columbia Circuit, the New York Times reports.

The case is “inextricably entwined” with another detainee case pending in the U.S. Supreme Court, Boumediene v. Bush, which asks whether the law creating military commissions and a review process for their decisions violates the right to habeas corpus, the Times says. The Bismullah case concerns how far the D.C. Circuit can go in reviewing the combatant designation, and the Boumediene case concerns whether the review provided goes far enough to satisfy the Constitution.

The government could find itself at cross-purposes in the two cases. “If the government’s argument for a severely limited review in the D.C. Circuit wins the day, the detainees’ lawyers would appear to be strengthened in their position that no adequate substitute for habeas corpus has been provided,” the story says. “On the other hand, a requirement, which the detainees seek, for a more robust appellate review could strengthen the government’s hand in arguing that there is no need for habeas corpus after all.”

SCOTUSblog reported on the government appeal in the Bismullah case yesterday. U.S. Solicitor General Paul Clement is likely to argue that the two detainee cases “are part of a package and ought to be considered back-to-back if not together,” the blog says.