Court refuses to hear Hamdan case
on Oct 1, 2007 at 12:33 pm
In two separate orders Monday, the Supreme Court refused to consider the case of Salim Ahmed Hamdan, a Guantanamo Bay detainee who is likely to face war crimes charges before a U.S. military commission. Hamdan had sought to have his challenge to his continued detention considered by the Court along with the pending Guantanamo cases, Boumediene v. Bush (06-1196) and Al Odah v. U.S. (06-1197). His case sought to raise constitutional issues not directly posed in those other cases. The Court made no comment as it refused to allow him to file a new plea for rehearing in a case it had denied in April (06-1169), and denied his new petition for review in advance of action by the D.C. Circuit (07-15).
Ordinarily, the Court’s action would mean that the case of the Yemeni national would return to the D.C. Circuit Court for review of a pending appeal he has there. However, the appeals court has put his case on hold pending the Supreme Court’s review of the Boumediene/Al Odah cases.
The war crimes charges against Hamdan have been dismissed by the presiding judge of a military commission that was to try him. However, that dismissal is likely to be overturned because of a new ruling by the U.S. Court of Military Commission Review in another case, involving a Canadian in detention, Omar Ahmed Khadr. The CMCR ruled last month that military judges have the authority to make the factual findings to justify bringing a detainee before a commission for trial. Hamdan and Khadr are the only two prisoners at Guantanamo who have been charged and whose legal status is still open. Some 80 others at Guantanamo may face war crimes charges later, officials have said, although a recent Wall Street Journal article reported that the entire prosecution machinery is in disarray because of disagreements among top military officers.
Since neither Hamdan nor Khadr has gone to trial, their challenges have been to their detention, not their potential trials, although both contend that the entire process of the military commission system is unconstitutionally flawed. Hamdan won a case in the Supreme Court in July 2006, when the Court struck down the military commission system fashioned by President Bush’s order. Since then, Congress passed the Military Commissions Act of 2006, reviving the commission system and moving to strip federal courts of their authority to hear detainees’ habeas cases.
Hamdan returned to U.S. District Court with a new habeas challenge to his detention, but that was dismissed by a federal judge last December. Hamdan then filed an appeal to the D.C. Circuit Court, asking for immediate en banc review, and simultaneously asked the Supreme Court (in 06-1169) to take his case before the D.C. Circuit Court could act on it. The Court turned down that appeal on April 30, over the dissents of three Justices.
Hamdan did not file a petition for rehearing of that denial until the time for doing so had passed, but his lawyers then filed a request for permission to file a new petition for rehearing. At the same time, they also filed a new petition for review before judgment by the Circuit Court (07-15).
Those were the matters the Court disposed of in Monday’s orders. There were no noted dissents by any of the Justices.
On July 25, while those pleas were pending in the Supreme Court, the D.C. Circuit ordered that Hamdan’s petition for hearing en banc “be deferred pending further order of the court.” Both sides were then ordered to file motions to govern further proceedings within 30 days after the Supreme Court ruled in Boumediene and Al Odah.
The Supreme Court is expected to hear those cases in December.
The Supreme Court, in another detainee case, gave lawyers for Abdul Hamid Al-Ghizzawi permission to file a petition under seal, but refused to expedite its consideration of the petition (07M5). His detention case was one of two that have become highly visible examples of what are called “do-overs” in the Pentagon system for processing Guantanamo detainees. Detainee lawyers have complained that, if a military panel finds a detainee not to be an enemy combatant, higher officials order a new review to lay a basis for continued detention.
 In one other detainee case, the Court declined to consider granting an original writ of habeas corpus to bar the military from transferring Ahmed Belbach out of Guantanamo Bay, presumably to his home country, Algeria. The Supreme Court had denied him any immediate relief on Aug. 10. Monday’s order was a denial of a petition for an original writ (07-714). Belbacha’s attorneys have said he fears torture if returned to Algeria.
