Hamdan: another round, another disagreement
on Aug 30, 2006 at 7:17 pm
Legal activity continues in the lower courts in the wake of the Supreme Court’s June 29 ruling in Hamdan v. Rumsfeld (05-184), striking down under federal law and one part of the Geneva Convention the war crimes tribunals set up by the Pentagon at the detention camp for suspected terrorists at Guantanamo Bay, Cuba. This post discusses the latest development in that case.
The Justice Department on Wednesday urged the D.C. Circuit Court to define narrowly the victory that Salim Ahmed Hamdan won in his war-on-terrorism appeal to the Supreme Court, and to limit his option if he wants to challenge his continued detention at the U.S. military prison at Guantanamo Bay, Cuba. The lawyers for the Yemeni national countered that the case should be sent back promptly to U.S. District Court so that he may test the government’s factual basis for detaining him further – including the question of whether the war on terrorism is actually going on in Afghanistan, where Hamdan was captured more than four years ago.
Thus, two new filings in response to a request from the Circuit Court for views on what to do now with Hamdan’s case, produced — perhaps predictably — a fundamental disagreement about which court should now proceed with what remains of Hamdan’s claims against his captivity. The two sides also disputed parts of the background record in the prolonged case.
In essence, the government suggested that the Circuit Court is now to play the primary role in concluding any remaining legal challenges that Hamdan wants to press, while Hamdan’s team suggested that the District Court has actually retained the authority to decide in the first instance all of his remaining objections to his detention. Hamdan’s case brought a sweeping challenge to the war crimes tribunals set up in late 2001 to pursue charges against terrorism suspects at Guantanamo. The Supreme Court decided that challenge in his favor on June 29, and the Circuit Court is now dealing with the aftermath.
The government’s new motion on further proceedings can be found here, and Hamdan’s simultaneously filed motion can be found here.
The Justice Department’s argued that the Supreme Court decision only put a stop to a trial of Hamdan before a “military commission†as such a tribunal exists at present, and did not resolve any issue about his status as an “enemy combatant†or as a prisoner-of-war (under Article 5 of the Geneva Convention).
The Supreme Court’s decision, the new motion said, means that Hamdan is not entitled to any ruling on whether he is being held as a prisoner-of-war under the Geneva Convention. And, it contended, if he wants to pursue any challenge to further detention by the U.S. military, apart from any war crimes trial, he must do so only in the Circuit Court in proceedings that would not range as widely as a habeas challenge.
Hamdan’s counter motion does not discuss the POW question. But it directly contests the idea that the Supreme Court ruling has wiped out his original habeas challenge and that his cointinuing pursuit of any such claims must be only in the Circuit Court.
The two sides could not agree even on what Hamdan had sought in his original habeas petition, filed initially in federal court in Washington State but later transferred to and decided by the District Court in Washington.
When Hamdan pursued his initial habeas challenge, the Department motion said, he did not formally contest his detention, and lower courts and the Supreme Court understood that he had not. He did ask for a requirement that the military justify his detention, but the District Court did not require that, and neither did any higher court. It also noted that the Supreme Court left that issue open.
Hamdan, by contrast, contended that the detention issue was central to his original claim, and the challenge to the military commission only proceeded as a separate issue, both in lower courts and in the Supreme Court, with his challenge to detention merely held “in abeyance” in District Court. The government, Hamdan argued Wednesday, has yet to offer any evidence that Hamdan is an “enemy combatant in an ongoing war,†or any other evidence that would justify holding him.
Hamdan’s lawyers told the Circuit Court that they will renew, in District Court, their plea to gather the factual evidence the government would advance to try to justify his further captivity.
If Hamdan now wants to contest his continued detention, no matter how his original habeas claim is interpreted, the Justice Department motion asserted, he must do so only in the Circuit Court under the Detainee Treatment Act passed by Congress late last year. While it argues that the Circuit Court route would enable detainees to make broad challenges to their status, detainee lawyers have argued (and did so again Wednesday) that the DTA-mandated process is considerably narrower than would a habeas challenge in District Court – the alternative that those lawyers are asking the Circuit Court to allow for cases filed before DTA was passed.
Hamdan, by contrast, argued that the DTA did not wipe out his case, because it was filed before the act was passed, and the Supreme Court had salvaged such cases in its ruling in his case. Thus, his motion claimed, the District Court is the proper place to go forward with the inquiry into his detention.
On the question of POW status for Hamdan, the Department proposed that the Circuit Court modify the existing District Court order against a war crimes tribunal, deleting its requirement that POW status be determined. The result, it said, would be that the POW question remained open “for another day.†Regarding further potential war crimes proceedings, the Department conceded that Hamdan cannot be tried by a commission unless the Pentagon modifies the commission process to meet the Supreme Court’s demands, or Congress passes a new law governing commission trials. But, if there is a new commission process put in place, it said, Hamdan must start over with a new challenge.
