A final move to save Hamdan’s appeal
Lawyers for a Yemeni national held in U.S. military detention made a final move Wednesday to keep alive his case in the Supreme Court, arguing that the text of the Constitution itself makes clear that captives at the Guantanamo prison in Cuba are protected against the loss of their right to contest theirtreatment as “enemy combatants.”. The clause in Article I that limits when the habeas writ can be suspended, the new brief contended, does not limit its scope to “the people” who enjoy all the protection of the Bill of Rights — that is, the people living inside the borders of the U.S.
The constitutional implications in the case of Salem Ahmed Hamdan (Hamdan v. Rumsfeld, docket 05-184) will take on major significance if the Court concludes — as the Bush Administration asserts — that Congress in passing the new Detainee Treatment Act intended to nullify all pending habeas cases filed by Guantanamo detainees. Hamdan is one of a small group of detainees facing war crimes charges before a “military commission,” but hundreds of other captives are challenging their cointinued detention at the Navy prison in Cuba and all of them could be affected by the contfoversy over the new Act’s scope.
The Administration contends that the detainees, as “enemy combatants” held outside the U.S., have no constitutional protection against continued imprisonment or war crimes prosecution. Thus, it argued earlier this week, there is no reason for the Court not to go ahead and rule that Congress could wipe out all of their habeas claims.
Of course, there is a major dispute in Hamdan’s case, and in the cases of other detainees, over what Congress’ intention was in regard to pending cases when it passed the Act to strip the courts of habeas jurisdiction. Defense lawyers for the detainees read the new Act as being prospective only, contrary to the Administration interpretation. The Court will not need to reach the constitutional questions if it agrees with the detainees’ position.
Wednesday’s filing, a “surreply” by Hamdan’s counsel, completes the briefing on the government’s motion to dismiss Hamdan’s case on the theory that the Court has lost jurisdiction over it. The Court is expected to consider the dismissal motion at its private Conference on Friday of this week.
The “surreply” brief, besides engaging the government on the constitutional questions, sought to reinforce earlier arguments that Congress has left the Court free to proceed with a ruling on the merits of Hamdan’s challenge to any trial of him before a “military commission.” If the government view is accepted, the new filing contended, neither the Supreme Court nor any other Court would have the authority to decide the very questions that the Court has agreed to hear in Hamdan’s appeal — that is, whether the “commission” system is fo flawed as now set up that no detainee could be legally tried. Under the new Detainee Act, the only court challenge that would be left open would be a far more limited form of judicial review, after a “commission” had found a detainee guilty of war crimes.
The Hamdan case is now scheduled for oral argument before the Court on March 28. His attorneys argued Wednesday that the Court, at the least, should defer any ruling on the motion to dismiss until that hearing.
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Love that footnote 2, blasting the excessive delay in military capital cases.
Comment by Kent Scheidegger — February 15, 2006 @ 7:42 pm
Hamdan’s last point is an excellent one, that the government’s main constitutional argument against jurisdiction is merely a restatement of their case on the merits. It’s almost as if Clement is arguing, “He loses on jurisdiction because he’ll lose on the merits.” But if I remember Drew Days’s Civ Pro class correctly, jurisdiction doesn’t depend on whether or not the plaintiff will ultimately prevail on the case.
My prediction (and I don’t think I’m going out on a limb here): Hamdan wins this one. The text of the DTA isn’t clear enough to decide it on that alone; both sides have their own “legislative history” that cancel each other out; and the constitutional argument leans towards Hamdan. But even irrespective of all that, the most important thing is that the Justices _really want to hear_ oral argument on this case.
Comment by YLS 08 — February 16, 2006 @ 9:26 am
I don’t think Neal’s point in footnote 2 was to “blast” the delay in military capital cases. Rather, because there is no procedural device [you cannot file a federal habeas corpus like, e.g., a state capital case], the post-appellate review [and coram nobis] process in military cases is more convoluted. The 10 year case is Loving v. US, 517 US 748 (1996), ironically a key decision on the issue of presidential authority in Hamdan, and the “delay” is based in large part by some exceptional efforts by Loving’s post-conviction attorneys, headed by John Blume of Cornell Law. If it takes 10 years plus to resolve all of the issues in a court-martial that imposes the death penalty which must – like the military commission’s bastardized procedures – be reviewed and approved by the President, how is it to be surmised that such a review of a military commission “trial” with its ad hoc and never-before used procedures, will go any quicker? Remember, this is a President who as Governor, certainly wasn’t shy about killing people.
Comment by DGR — February 16, 2006 @ 8:22 pm