D.C. Circuit to weigh Hamdan impact
on Jul 27, 2006 at 4:24 pm
After a considerable delay, the D.C. Circuit Court has asked lawyers involved in two packets of war-on-terrorism cases to file new briefs on how those cases are affected by the Supreme Court’s June 29 ruling in Hamdan v. Rumsfeld (05-184). In an order issued Wednesday, the Court finally responded to a Justice Department request — filed on June 30 — for supplemental briefing. The Circuit Court had appeared to be simply ignoring that request.
The new order lays out a new briefing schedule but gives no indication whether the Circuit Court will hold oral argument on the issue. The Justice Department is to file the government’s views on Aug. 1, the detainees’ lawyers are to respond by Aug. 8, and the government may file a reply by Aug. 15.
There was no explanation for the order. But one possible speculation could be that the Circuit panel, after weighing on its own the effect of the Hamdan decision, found it was having difficulty sorting out the question and opted to ask for some help from the attorneys on both sides.
The Supreme Court’s decision in the Hamdan case dealt specifically with the legality of the war crimes “military commissions” set up for individual detainees at Guantanamo Bay who face such charges — a total of 14 foreign nationals. The Court decided in that case that Congress, in passing the Detainee Treatment Act late last year, had not wiped out the Supreme Court’s authority to decide the Hamdan case. The Court’s language was broader, however, saying (in footnote 15) that the Detainee Act’s section on the effective date of the law “does not strip federal courts’ jurisdiction over cases pending on the date of he DTA’s enactment.” But that opinion (in footnote 14) also said the Court was not deciding whether some habeas cases pending at the time of enactment would be taken away from District Courts and shunted to the D.C. Circuit for a narrower form of review, under other effective date provisions in the Detainee Act.
That left the D.C. Circuit with the task of deciding, in the first instance, whether the Detainee Act in fact had wiped out the authority of lower courts to decide challenges to detention by individual captives who have not been charged with war crimes, but are simply being held for an indefinite period.
The Justice Department, in asking for new briefing on that point in the Circuit Court, had said that the Supreme Court decision in Hamdan was “obviously pertinent” to the other detainee cases. But the detainees’ lawyers countered that the Supreme Court had already settled the issue, and that the Detainee Act did not apply to cases that were pending in the federal courts at the time that Act was passed. The detainees’ counsel said no further briefing was needed.
That is the issue the new briefs will focus upon, and the D.C. Circuit will then have to decide. There is no set timetable for a decision.
In its June 30 request for new briefs, the Justice Department had suggested that the new briefing should be completed by July 17. That date, however, came and went without any response from the Circuit Court, until it issued the order on Wednesday.
