SG Brief in Opposition in Boumediene

The Solicitor General has filed his brief in opposition to the cert. petitions in Boumediene, the GTMO habeas actions (Nos. 06-1195, 06-1196). As I predicted (see here and here), the SG -- no doubt aware that the Court is likely to hold that the Constitution protects the detainees at GTMO -- has decided to focus the case on the much closer question, which is whether the D.C. Circuit review of CSRT determinations, prescribed in the DTA and MCA, is an "adequate substitute" for habeas, assuming that the detainees at GTMO do have constitutionally protected habeas rights.

In particular, the government argues that to the extent the Pentagon's CSRT procedures are statutorily or constitutionally inadequate, the D.C. Circuit could say so (and could presumably order the Pentagon to perform legally adequate reviews -- although the SG doesn't quite say that). The government also stresses that in the pending Bismullah and Parhat cases (to be argued in mid-May), the D.C. Circuit might even hold (over the government's own argument to the contrary) that the court of appeals can engage in "an exhaustive scope of review [of CSRT decisions], including wide-ranging discovery and fact-finding by the court of appeals."

The SG also argues that the Court should not entertain the petitions until next Term, after the D.C. Circuit has determined the nature of its review, and has actually implemented the review procedures in particular cases. Much more on the procedural and timing arguments from Lyle Denniston here.