New developments on detainees
(NOTE TO READERS: This coming weekend, this blog will post a comprehensive update on the status of the legal claims of the Guantanamo Bay detainees, now that the Supreme Court has put itself — at least temporarily — on the sidelines. Some of these continuing actions will set the stage for new appeals to the Supreme Court later. The post below covers new developments in detainee cases now pending in lower courts.)
The Defense Department on Thursday formally began the process for trying a Yemeni national, Salim Ahmed Hamdan, on war crimes charges. In a press release, found here, (which includes a link to the seven-page charge sheet), the Pentagon accused Hamdan of engaging for more than four years in a conspiracy to aid violent al Qaeda attacks on the U.S., including the Sept. 11, 2001, attacks, and of providing “matrerial support for terrorism.” As the news release points out, Hamdan will be arrainged on the charges within 30 days at Guantanamo Bay, Cuba, and a “military commission” that will conduct the trial will be assembled in 120 days. No actual date has been set for the start of the trial itself.
The Supreme Court, after ruling in late June 2006 that Hamdan could not be tried under the “military commission” system that existed at the time, refused on April 30 — over three Justices’ dissents — to hear a new appeal by Hamdan seeking to challenge his impending trial before a commission as newly constituted under the Military Commission Act passed by Congress last October. (Hamdan v. Gates, docket 06-1169).
Hamdan’s habeas challenge had been dismissed by a U.S. District Court judge in December 2006, and he still has an appeal pending in the D.C. Circuit Court contesting that dismissal order. HIs Circuit Court case (docket 07-5042) had been put on hold while he sought Supreme Court review ahead of any Circuit Court action. On Wednesday, the Circuit Court ordered lawyers for Hamdan and for the federal government to file by June 8 “motions to govern future proceedings in this case.” The government, as it has done in other detainee cases, is expected to urge the Circuit Court to order the dismissal of Hamdan’s habeas plea under the court-stripping provisions of the Military Commissions Act.
Meanwhile, the cases of other Guantanamo detainees who have not been charged with any crimes but remained confined are being readied for a 30-minute hearing before the D.C. Circuit next Tuesday, starting at 9:30 a.m., before Chief Judge Douglas H. Ginsburg and Circuit Judges Karen LeCraft Henderson and Judith W. Rogers. That hearing is expected to lead to a ruling laying out the procedures the Circuit Court will follow in reviewing detainees’ challenges to their designation as enemy combatants and the military’s review of their continued detention.
That hearing (in the combined cases of Bismullah v. Gates (Circuit docket 06-1197) and Parhat v. Gates (06-1397) has taken on added significance because the government is seeking to curtail lawyers’ access to the detainees and to information the lawyers may use in seeking to protect the detainees’ legal interests. On Wednesday, a group of amici interested in lawyers’ professional responsibility asked the Circuit Court to permit them to file a brief supporting the detainees and opposing the government’s moves to modify the arrangements for lawyers and detainees. That brief and the motion to file can be found here.
The brief argues that “the restrictions proposed by the government would effectively eliminate [the] right [to effective assistance of counsel] and unreasonably interfere with lawyers’ professional responsibilities to their detainee clients. Amici therefore support petitioners in urging the Court to reject the government’s proposed order, and to adopt instead the standard form protective order that has heretofore governed habeas proceedings from Guanatnamo in the District Court.”
The brief was offered by three bar associations, the Association of Professional Responsibility Lawyers, the International Senior Lawyers Project, and two professors specializing in lawyers’ professional obligations — Stephen Gillers of New York University and David Luban of Georgetown Law Center.