A move to shore up Hamdan’s appeal
on Dec 23, 2005 at 5:52 pm
The legal defense team for Salim Ahmed Hamdan, concerned that the Bush Administration might try to scuttle his pending Supreme Court appeal challenging a trial before a war crimes tribunal, this week asked the Court to take steps to assure that the case goes to a final ruling. The request for several alternative forms of review was filed on Monday, to try to head off the possible impact of the so-called Graham-Levin amendment in Congress. (The new filing is In re Hamdan, docket 05-790.)
The Court granted review of Hamdan’s petition (Hamdan v. Rumsfeld, docket 05-184) on Nov. 7. It has not yet been scheduled for oral argument.
The Hamdan case is now the second major war on terrorism case pending at the Court that is faced with the prospect of being put beyond the Court’s reach. The other is the case of Jose Padilla, a U.S. citizen, who has a petition pending (05-533) to challenge his designation and detention as an “enemy combatant.” The Justice Department in recent weeks has engaged in legal maneuvering that the Fourth Circuit Court suggested this week may have been an attempt to prevent Supreme Court review of Padilla’s case. So far, Padilla’s case at the Court remains a live controversy, but the government has argued that the Court should deny review.
The Hamdan case’s fate may turn on the ultimate meaning given to the Graham-Levin legislative amendment. Now adopted in final form in a Pentagon funding authorization measure awaiting President Bush’s signature, that measure will narrow the legal rights of foreign nationals held as terrorism suspects at the U.S. military prison in Guantanamo Bay, Cuba. The Justice Department has not yet signaled how it will interpret the final version, but Hamdan’s attorneys told the Court they “believe it is possible that the government may…urge this Court to dismiss the petition in No. 05-184 in light of this new legislation.”
The new petition, his lawyers told the Court, “is filed to protect this Court’s jurisdiction only as necessary, i.e., to the extent that the Court concludes that the Graham-Levin Amendment precludes ruling on the merits” of his pending appeal challenging the “military commissions” created by President Bush to try foreign nationals like Hamdan, who is a Yemeni citizen.
Sen. Carl Levin (Michigan Democrat), one of the architects of the rights-curtailing amendment, said Thursday that he understood the final version would not deprive the Court of the authority to go ahead and rule on Hamdan’s case. But there appears to be some measure of uncertainty about whether Levin’s view would be shared universally, since the text of the final version does not say explicitly that pending cases like Hamdan’s would not be affected.
“This petition,” his attorneys told the Court, “is filed out of an abundance of caution to preserve the multitude of possible avenues for this Court’s exercise of jurisdiction over Hamdan’s appeal. As lawyers for petitioner, undersigned counsel have an obligation to ensure that all of this Court’s jurisdiction remains available.”
The petition asks for either an extraordinary writ, including possibly a writ of mandamus, or an original writ of habeas corpus — one filed directly in the Supreme Court, rather than reaching the Court after lower court consideration. Hamdan’s pending appeal came up as a regular habeas case from U.S. District Court and the D.C. Circuit Court.
Hamdan’s attorneys told the Court that they were not waiving their right to contest the applicability of that amendment to a case that already is under review by the Justices, or their right to challenge its constitutionality if the amendment is read to apply to his case.
An interesting facet of the new filing is the lawyers’ reliance on one of the most famous cases to come out of the Supreme Court in the aftermath of World War II — the case of In re Yamashita, involving a Japanese general tried and convicted by a U.S. military commission for war crimes. The Court heard that case on habeas corpus, though ultimately ruled against the general’s challenge. That case, Hamdan’s lawyers noted, involved both a petition for certiorari and a request for an original writ.
