Government reads Hamdan broadly
on Aug 3, 2005 at 6:49 pm
The federal government, as expected, moved this week to expand its victory in court on the creation of military war-crimes tribunals to its handling of terrorism suspects now being held at Guantanamo Bay, Cuba. It did so by suggesting a broad interpretation of the D.C. Circuit’s ruling July 15 in the tribunals case, Hamdan v. Rumsfeld (04-5393). That decision, two new Justice Department briefs filed on Tuesday argue, “significantly undercuts the claims advanced” by the Guantanamo detainees.
The two controversies are not identical. In Hamdan, a Yemeni national captured in Afghanistan and designated a terrorist sought to challenge his forthcoming trial before a “military commission” — the war-crimes tribunals that President Bush set up outside the military and civilian court systems. In the Guantantamo detainees’ cases, a large group of suspects who face no criminal charges are seeking to challenge their long-term detention at the U.S. Naval prison camp in Cuba. But similar legal issues arise in the cases, and the government’s new filings sought to draw close parallels between the two proceedings.
In Hamdan, the D.C. Circuit ruled that the President had the authority, granted by Congress in the post 9/11 resolution, to create the special war-crimes courts to try individuals like Salim Abdel Hamdan. It also ruled that Hamdan had no legal right to seek court enforcement of the Geneva Convention Relative to the Treatment of Prisoners of War. And it concluded that Hamdan could not claim prisoner-of-war status.
The new Justice Department filings contend that the Hamdan ruling bolsters the government’s argument that Congress’ post-9/11 resolution gave the President wide authority to detain enemy combatants, and was not limited to capture or prosecution of only those individuals personally involved in the 9/11 terrorist attacks on the U.S. (The Department asserts again in one of the new filings that the President has inherent constitutional authority, even without authorization for Congress, to order the detention of terrorism suspects — an argument that the D.C. Circuit did not pass upon in the Hamdan decision.)
The Department also argues that the Hamdan ruling rightly gave a narrow interpretation of the Supreme Court’s 2004 decision in the first detainees’ case (Rasul v. Bush). This, the Department goes on, left undisturbed “the established principle” that foreign nationals being held outside U.S. territory have no constitutional right to due process. Thus, it suggests, the due process claims raised in the new detainees cases are without merit.
In addition, the Department says that Hamdan squarely rejected any role for U.S. civilian courts in enforcing the Geneva Convention — any version of the Convention — so the detainees have no claims to make on that point, either. “These holdings are binding…and are dispositive” of any Geneva claims, it argues. The same is true, it adds, for claims advanced under other international treaties.
Similarly, the Department finds in the Hamdan decision a rejection of any claim to prisoner-of-war status under U.S. Army regulation 190-08. The President, according to Hamdan, had the authority to deny POW status to the detainees, the Department says.
The detainees’ lawyers have until next Tuesday to provide the D.C. Circuit with their interpretation of the impact, if any, of Hamdan on the detainees’ rights. The D.C. Circuit has scheduled a hearing in the detainee cases for Sept. 8.
(The Hamdan case, now a significant precedent at least in the D.C. Circuit, is expected to go on to the Supreme Court. If it does, and if Judge John G. Roberts, Jr., is confirmed as a Justice on the Court, he presumably would not take any part in any consideration of decision on the Hamdan case. He was a member of the panel in that decision. He told the Senate Judiciary Committee this week that, as a member of the Court, he would “recuse myself from matters in which I participated while a judge on the court of appeals.”)
(NOTE: Thanks to Richard Samp of the Washington Legal Foundation for assistance with this post.)
