Hamdan: a new dispute
In a fashion that now seems typical of the war on terrorism cases involving foreign nationals being detained in Cuba by the U.S. military, the case of Salim Ahmed Hamdan has taken on new complications this week.
A month ago, the Supreme Court agreed to rule on the appeal filed by Hamdan, a Yemeni national facing war crimes charges at the U.S. Navy prison camp at Guantanamo Bay, Cuba — a case that challenges the military tribunals set up on President Bush’s orders. And, a year ago, a federal judge ordered the Pentagon to take Hamdan out of the detention wing where detainees awaiting war crimes trials are held. But controversy has broken out anew in federal court, with Hamdan back in that special holding area, amid claims by his lawyers that the military is seeking to disrupt his dealings with his lawyers. It is unclear when this will be worked out, and by whom.
Last November, U.S. District Judge James Robertson in Washington ruled that Hamdan could not be tried by a military commission, as presently constituted. And, in his order to enforce that ruling, he told the military to put Hamdan back with the general captive population at Guantanamo. That order is still in effect. The D.C. Circuit overturned his ruling last summer, but it has never issued its mandate in the case. In the meantime, Hamdan went on to the Supreme Court.
But, in what his attorneys called an emergency motion filed in District Court on Tuesday, the Court was asked to order the military to put him back in the general population, and to give lawyers 30 days’ notice before any attempt is made to move him for other than medical reasons.
In the strongly worded legal papers, his attorneys accused the government of “a pattern of seeking to marginalize or eliminate the judicial function, up to the point of outright disobedience of duly entered court orders.” They also complained that the military is engaged now in “attempts to undermine counsel’s relationship” with Hamdan. The attorneys contended that, in the special detention wing, Hamdan would be exposed to other detainees who may try to persuade him to fire his lawyers. They said that they learned from an intermediary, last weekend, that Hamdan already was suggesting that his lawyers were abandoning him.
The government as of Wednesday night had not yet responded to the new motion. It is Judge Robertson’s order on the terms of Hamdan’s confinement that is at issue, and in the ordinary situation, he would be the one to act on it. In an order issued early last month, the District Court said all disputes on “logistical issues, such as communications with or visits to clients and counsel,” for any of the detainees at Guantanamo who have court cases pending, are to be examined first by a magistrate judge, Alan Kay. Hamdan’s case is one of those listed in the order, but it is not clear that his lawyers’ new motion fits within its terms.
In the meantime, the ability of Hamdan and any other Guantanamo detainee to continue their legal challenges remains uncertain, while Congress ponders a pending bill to curtail their right to challenge their confinement or to challenge the military commission system before any trial begins.
At the Court, however, Hamdan’s case is moving toward an argument and decision in the current Term. His lawyers have been given until Jan. 6 to file their opening merits brief.