Everybody out: a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit ruled unanimously this week to close oral argument to the public in a Guantanamo Bay detainee dispute viewed as a test case for the government's authority to hold alleged combatants in military detention.
Last year, Judge Richard Leon of the U.S. District Court for the District of Columbia found that the government met its burden to detain Belkacem Bensayah as an enemy combatant even though he was arrested in Bosnia, hundreds of miles from battle. Leon denied habeas corpus to Bensayah, who is represented by Wilmer Cutler Pickering Hale and Dorr. The judge found Bensayah intended to facilitate travel to Afghanistan for those who wanted to battle the United States.
Leon’s ruling, following a hearing that was closed to the public, was the first on the merits of the government’s evidence to detain an individual as an ememy combatant. Leon ordered the government to release five other men; the Justice Department did not appeal that part of the judge’s decision. The court published an unclassified version of the ruling.
On appeal, lawyers for Bensayah, including Wilmer Hale partner Marc Fleming, are challenging, among other things, the admission of certain evidence and the legal definition of “enemy combatant.” Much of the record in the D.C. Circuit is classified and under seal. The court released heavily redacted versions of the briefs on Sept. 11.
“The court’s ruling authorizes military imprisonment for mere intention, without finding that Mr. Bensayah acted affirmatively to advance any military objectives,” Fleming wrote in a brief filed in June. “Whatever authority the Executive has to detain alleged ‘enemy combatants,’ it cannot extend to cases of mere ‘intention’ without proof of any action.”
Fleming said Leon relied on “unfinished, conclusory intelligence reports and uncorroborated assertions from anonymous sources.” The judge refused to order the government to search for exculpatory information, which Fleming said was later provided to him in April 2009. (The Justice Department said the information, which is classified, supports Leon’s judgment.)
On the evening of Nov. 11, 2008, Leon said the government is “not clearly in a zone where you are meeting the standards set by the [court]." Leon gave the Justice Department a second chance, and government lawyers submitted more classified information to the court, according to Fleming’s brief. The Wilmer Hale team had 31 hours to research the new information—insufficient time, according to Fleming. Leon denied the lawyers additional time.
Justice Department appellate lawyer Sharon Swingle said in a letter to the D.C. Circuit that the government is prepared to argue the case in open court so long as no classified information is discussed. The courtroom could be cleared if the appellate judges wanted to ask about classified information.
“The Department of Justice has provided classified material to the Court with the understanding that the secrecy of this information will be protected,” Swingle, of the department’s Civil Division, wrote in an Aug. 28 letter to D.C. Circuit Clerk Mark Langer.
In response to Swingle’s letter, Fleming said the inability to argue classified information in open court would hurt Bensayah’s effort to have Leon’s order reversed.
“We certainly believe that there is a strong public interest in this appeal, and we would welcome an argument in open session if the government were to agree that the record below and all of the rulings under appeal could be discussed publicly,” Fleming wrote in a letter to the court. “Absent such an agreement by the government, however, Mr. Bensayah’s contentions on appeal cannot be meaningfully presented or assessed in open session, because oral argument necessarily will require reference to the classified record and the classified briefs.”
Judges Douglas Ginsburg and Karen LeCraft Henderson, with Senior Judge Harry Edwards, ruled on Monday to close oral argument, which is scheduled for Sept. 24 at 9:30 a.m. in Courtroom 11 of the E. Barrett Prettyman United States Courthouse. The panel also ruled yesterday that a lawyer for another Guantanamo detainee who asked to attend the Bensayah hearing will not be allowed to sit in the gallery.