First military trial blocked
on Nov 15, 2005 at 11:15 am
Amid the maneuvering in the Senate over judicial review of detainees held by the U.S. military (see Marty Lederman’s report above for the latest), a federal judge in Washington has barred the Pentagon from going ahead with the first planned war crimes trial before a military commission. U.S. District Judge Colleen Kollar-Kotelly stayed the trial of Australian David M. Hicks until after the Supreme Court has decided the case of Hamdan v. Rumsfeld, a constitutional and international law challenge to the commission procedures. (The case in U.S. District Court is Hicks v. Bush, docket 02-299.)
The case against Hicks was to begin on Friday of this week, with a hearing on pre-trial motions. But Kollar-Kotelly’s order, issued Monday, blocked military officials “from going forward with any and all legal proceedings” against Hicks, based on the Supreme Court’s Nov. 7 grant of review in the Hamdan case (Supreme Court docket 05-184).
Hicks has been charged with conspiracy, attempted murder and aiding the enemy, with trial to be before a military commission, presumably at Guantanamo Bay, Cuba, where he has been detained for nearly four years. He was captured in Afghanistan in 2002 and turned over to U.S. military authorities.
“An injunction in this case is necessary in order for this Court to maintain its jurisdiction over petitioner’s claim that a military commission lacks jurisdiction to try him, a claim which petitioner is entitled to have adjudicated by this Court prior to trial before a military commission,” Kollar-Kotelly said in a 15-page opinion in support of her stay order. “Petitioner faces the clear and imminent risk of being subjected to a military commission which has not been ultimately determined by the Supreme Court to have jurisdiction over petitioner.”
She found that the government would not suffer any significant harm by the delay. “Minor logistical reshuffling” is the only likely effect on military prosecutors, she said.
Rejecting a government argument that staying Hicks’ trial would mean the courts were intruding into the Executive branch’s area, the judge said the Supreme Court should be the tribunal to decide such a key separation-of-powers issue.
The judge conceded that the D.C. Circuit’s ruling in July upholding military commissions would suggest that Hicks probably would not win his challenge on the merits. But she said other factors justified a stay. She commented: “Hamdan is a unique, highly contentious case involving unprecedented and high-profile claims regarding the propriety of military commission jurisdiction…The Supreme Court has already granted certiorari in the case for immediate briefing and oral argument this term.” Thus, she said, a “full and complete resolution” of the challenge is “on the immediate horizon” from “the highest court in the land.”
As part of her order, Kollar-Kotelly said no proceedings on any other issues would go forward in her Court while the stay was in effect.
