Hamdan goes directly to Court
on Aug 8, 2005 at 2:24 pm
Attorneys for a Guantanamo detainee facing war crimes charges on Monday bypassed possible review in the en banc D.C. Circuit, and appealed his case directly to the Supreme Court. The text of the petition for review is linked just below. (It is Hamdan v. Rumsfeld, docket 05-184.)
The petition for Yemeni national Salim Ahmed Hamdan is a broad challenge to the war crimes trials procedures to be used in his case and others involving terrorism suspects — that is, the procedures under the “military commissions” ordered into existence in November 2001 by President Bush as one of his first responses to the terrorist attacks of Sept. 11, 2001.
The appeal raises two questions:
“1. Whether the military commission established by the President to try petitioner and others similarly situated for alleged war crimes in the ‘war on terror’ is duly authorized under Congress’s Authorization for the Use of Military Force (AUMF), Pub. L. No. 107-40, 115 Stat. 224; the Uniform Code of Military Justice (UCMJ); or the inherent powers of the President?
“2. Whether petitioner and others similarly situated can obtain judicial enforcement from an Article III court of rights protected under the 1949 Geneva Convention in an action for a writ of habeas corpus challenging the legality of their detention by the Executive branch?”
Hamdan’s case is the most important war-on-terrorism appeal to reach the Supreme Court so far. Two rulings by the Justices in 2004 established some basic legal rights for detainees, to challenge their detention, and upheld presidential authority to detain foreign nationals — at least for limited purpose. But the Hamdan case is the first to mount a direct challenge to plans to punish some of the detainees, and it raises legal issues that also will affect the rights of Guantanamo detainees who are not charged with war crimes but face the prospect of being held indefinitely.
In Hamdan’s case, the D.C. Circuit on July 15 broadly upheld the President’s power to establish war crimes tribunals for foreign nationals, based on a finding that Congress had authorized the President to do so. The Circuit Court also ruled that the detainees may not pursue legal challenges in court based on international treaties, including the Geneva Convention.
Although Hamdan’s petition, in the first question, seeks to test the President’s claim of “inherent powers” during wartime, the D.C. Circuit did not pass upon that issue.
Circuit Judge John G. Roberts, Jr., President Bush’s nominee to the Supreme Court, joined in the D.C. Circuit ruling. If confirmed for a seat on the Court, he is expected to be recused from acting on the Hamdan appeal, because of his prior membership on the Circuit panel. That does raise the prospect, if review is granted, that the Court might ultimately split 4-4 in deciding the case, thus affirming the D.C. Circuit. That could be a factor that might influence the Court in deciding whether to hear the case at all.
The petition makes a strong effort to convince the Court to step in now, before Hamdan is actually tried. “If the Court were to decline certiorari,” the petition says, “it may not have occasion to reach these weighty issues again for many years.” Review of the case through the Executive branch could run on without time limits, the petition asserts. It adds: “If the Court does not grant certiorari, the sweeping authority given to the President may be his for several years before the Court has another opportunity to clarify even the most basic ground rules for commissions.”
Hamdan’s lead civilian attorney is Georgetown professor Neal K. Katyal, and his lead military attorney is Lt. Cmdr. Charles Swift of the Office of Military Commissions.
