UPDATE 11:05 p.m.   The government’s opposition to the stay motion can be found here.

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Relying heavily on the Supreme Court’s ruling three years ago against President Bush’s attempt to create a war crimes tribunal, an Afghan detainee at Guantanamo Bay has asked a federal civilian court to strike down the new tribunal system created by Congress and now embraced by the Obama Administration.  Mohammed Kamin, captured by the U.S. in Afghanistan six years ago, is now facing war crimes charges before a military commission at Guantanamo.  On Nov. 30, his military defense lawyer asked the D.C. Circuit Court to delay all further commission actions against him, and then strike down the entire system as a violation of the U.S. Constitution, the “law of war,” and the “law of nations.”

Kamin’s lawyers have filed two pleas: a stay motion, and a petition for mandamus or prohibition.  The government’s response to the stay request is due later today and will be posted when it is available.  The government is to reply to the constitutional challenge by Dec. 14. Previously, it has argued that the civilian courts have no role to play regarding commission trials until after a verdict is in and all military appeals are over.

The core theory of the challenge is that Congress did not have the authority to create the military commissions as they now exist, under a 2006 law and amendments to it this year.  The commissions could only have been set up under the Constitution’s grant of power to “define and punish offenses against the law of nations,” the petition noted. But the commission system that Congress created itself violates the law of nations, including the law of war recognized as a part of international law, it argued. It does so, in the main, because it allows for prosecution only of aliens, and not U.S. citizens, too, and that inequality violates international law as well as the U.S. Constitution’s guarantee of legal equality, according to the filing.

“Because the law of war applies equally to United States and foreign nationals, there has never been a principled basis for distinguishing between war crime trial procedures for alien enemy belligerents and citizen enemy belligerents,” Kamin’s lawyers asserted.  “Since before the Founding, the American military has consistently tried both alien and citizen enemy belligerents before the same law of war military commissions.”

It added: “Ironically, it is now the international community that embraces the traditional American position and requires equal treatment of aliens and citizens in military tribunals as a fundamental and customary principle of the law of war, while it is the United States that, against its own military tradition and legal precedent, has adopted the opposite view” in the Military Commissions Act of 2006.

The MCA was passed by Congress after the Supreme Court, in Hamdan v. Rumsfeld in 2006, struck down the war crimes trial system that was set up by presidential order during the Bush Administration.  Among the main arguments Kamin’s lawyers made against the MCA trial system is that the Supreme Court’s Hamdan decision requires that any military commission system created by Congress would have to conform to the law of war and the law of nations.

Kamin’s military commission system has been moving forward at Guantanamo Bay, and that tribunal is now scheduled to hold a hearing on pre-trial motions on Dec. 15.  Kamin’s lawyers thus asked the Circuit Court to put all such proceedings on hold until after it rules on the constitutional challenge to the overall system as well as Kamin’s own trial.

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