Hamdan: New law threatens Court’s central role
on Jan 31, 2006 at 8:44 pm
Defense lawyers for war-on-terrorism detainee Salim Ahmed Hamdan told the Supreme Court Tuesday night that the Court’s own role in the plan of the Constitution may be at stake in the interpretation of the new law to strip courts of authority to decide detainee cases. Urging the Court to go forward and decide his challenge to the “military commissions” set up to try captives for war crimes, his attorneys said that the Court should move cautiously in judging whether it has lost its jurisdiction to proceed under the Detainee Treatment Act of 2005.
The 40-page brief is the answer to the Bush Administration’s formal request to the Court on Jan. 12 to dismiss Hamdan’s case swiftly — the same request it is pursuing in other pending cases filed by detainees in U.S. District Court and in the D.C. Circuit Court. In Hamdan’s case, the Circuit Court upheld the constitutionality of the “military commission” that is scheduled to try him.
The Court is scheduled to consider the dismissal motion at its next private Conference, on Feb. 17, but Hamdan’s lawyers urged the Justices not to resolve that issue until it holds a hearing on all of the issues in the case — an argument now scheduled for March 28. It now appears that Chief Justice John G. Roberts, Jr., will not take part in considering the motion. Having sat on the D.C. Circuit when it decided the case, Roberts has taken himself out of consideration of several orders in the case — including one related to the briefing on the jurisdictional issue. The case will be one of the most important early cases confronted by the new Justice, Samuel A. Alito, Jr.
“Reading the [Detainee Treatment] Act to preclude this Court from reviewing the decision below would raise grave constitutional questions,” the Hamdan brief argued. “This Court should not lightly attribute to Congress an intent to interfere with the Court’s constitutional role in enforcing limitations on other branches’ authority.” Within the nation’s judiciary, the Constitution provides for only one Supreme Court, the brief noted, and Congress threatens “the essential role of the Supreme Court in the constitutional plan” if it undercuts that solitary authority to enforce the basic document.
The Court, it argued, “has never held that Congress’ power to make ‘exceptions’ to this Court’s appellate jurisdiction is plenary.” Any time a limit has been upheld, it noted, the Court has “gone out of its way to confirm that an alternative avenue of contemporaneous appellate review was available.”
But, if the Act does scuttle Hamdan’s present case, the lawyers said, he would lose completely the opportunity to make the threshold challenge to the President’s creation of the “commissions” — the core issue that the Court has agreed to hear in his case. The substitute system of limited court review that the Act sets up for those accused before “commissions,” the brief said, “is wholly inadequate.”
“If Hamdan were permitted only to proceed in federal court under the procedures specified by the DTA, no court would have jurisdiction to consider his principal claims that the President’s Nov. 13, 2001, order establishing his commission lacks legislative authorization, or that his commission violates the Geneva Conventions…..No judicial review is available under the DTA until the entry of a final decision….If a final decision is not entered, the individual is without any remedy whatsoever.”
The lawyers said the the Court should not be taken in by government rhetoric suggesting that review of Hamdan’s case will have a deeply distrubing effect on the military’s capacity to wage the war on terrorism. If the “military commission” as it presently exists is found invalid, the brief argued, “Congress stands ready to react” and can try another substitute to deal with terrorist suspects.
Much of the brief dwells on the argument that Congress did not intend to undercut courts’ power to decide pending cases. It ridicules the government’s argument that Congress was merely shifting detainee cses from one forum to another. “At stake is not merely when judicial review of the President;s assertion of power will take place, but whether such review will take place at all,” it contended.
The Act’s actual language, and the history behind its enactment, the defense lawyers said, show that Congress designed the new Act solely to reach later-filed lawsuits that challenge the ongoing administration of the war crimes tribunals after the Supreme Court decided the basic legality of those tribunals. Congress, they add, sought to ensure that Congress would clarify the law as to the “commissions” at the earliest possible time. Realizing that some members of the Court — notably, Justice Antonin Scalia — do not consider legislative history, the brief suggests that the actual words Congress used in the Act are decisive.
The legislative history, though, is examined closely, leading the lawyers to the conclusion that Congress expressly cut out of the bill as it advanced provisions that would apply the court-stripping provisions to pending cases.
Much of that argument is familiar now, since many of the points have been put forward by other lawyers for detainees in other cases. The Hamdan brief, though, is one of the most comprehensive in dealing with the potential constitutional questions that would arise if the Act were read to scuttle existing cases, including Hamdan’s.
“This Court,” the brief argued, “has never had to face the outer boundaries of Congress’ power over its jurisdiction because it has appropriately concluded in past cases that Congress has not entirely closed the courthouse door. If the Court accepts the government’s reading here, it will be required to confront complex and monumental constitutional questions that it has steadfastly avoided since the earliest moments of the Republic, and, in so doing, open the door to any number of legislatve attempts in other areas to repeal jurisdiction…, undermining this Court’s constitutional role as head of a coordinate branch.”
