Hamdan II: First test of tribunal bill?
on Sep 28, 2006 at 10:06 am
Salim Ahmed Hamdan, the Guantanamo Bay detainee whose case led to what may be the most important Supreme Court decision in history on war powers, has a chance to make even more history. His case could bring the primary challenge to the new war-on-terrorism legislation that Congress may enact soon, perhaps by the end of the day Thursday. Hamdan’s case, indeed, is already well advanced and could be unfolding further before a judge who has previously displayed deep skepticism about the Bush Administration’s handling of detainees at the military prison camp in Cuba — Judge James Robertson of U.S. District Court in Washington, D.C.
It was Robertsoin who in November 2004 struck down President Bush’s initial move to create war crimes tribunals (“military commissions”). A significant part of the judge’s earlier ruling was sustained by the Supreme Court in voiding the existing tribunals in Hamdan’s case last June 29 (Hamdan v. Rumsfeld, 05-184).
Robertson was assured of a continuing role last week, when the D.C. Circuit Court summarily returned Hamdan’s case to District Court, “for further proceedings.” (The order is available via Pacer on the Circuit Court website, docket 04-5393.)
The Circuit Court gave no explanation. Its action was something of a surprise, because that Court had been confronting competing proposals on what to do with the case in the wake of the Supreme Court decision, and had been expected to decide that question in the first instance. The Justice Department had argued that the Circuit Court itself should go ahead and resolve any issues lingering from Hamdan’s first case, and to do so under the narrower review terms of the Detainee Treatment Act passed last year. Hamdan’s lawyers, however, had argued that the case should be returned to Judge Robertson’s Court so that Hamdan could pursue a challenge to his original detention, his confinement at Guantanamo Bay, and other challenges not yet resolved by Robertson. (The two sides’ arguments are summarized in this earlier post.)
Instead of resolving that dispute itself, the Circuit Court simply opted to send the case back to District Court without any instructions on the scope of continuing review. Its two-sentence order, issued last Friday, remanded the case and vacated the Court’s own July 15, 2005, decision (which had upheld the commissions in a ruling that the Supreme Court reversed in June). That appeared to leave Judge Robertson with considerable discretion as to how to conduct the case from here on.
Now, either with an amended complaint, or with a new round of briefing in District Court, Hamdan’s case would have a strong chance of becoming an early vehicle for testing a number of the key provisions of the “Military Commissions Act of 2006.” That is the post-Hamdan bill crafted by the White House and several Senate Republicans; it was passed by the House on Wednesday by a 253-168 vote, and is due for further consideration in the Senate Thursday. Passage there is assured, and so is President Bush’s signature.
Since that legislation would bar all habeas challenges by anyone detained by the U.S. since the September 11, 2001, attacks, the Justice Department is expected to argue that Hamdan’s case cannot proceed further. Hamdan’s team, in turn, is expected to argue that the new measure amounts to an unconstitutional suspension of the writ of habeas corpus. The government no doubt will also contend that Hamdan cannot proceed further in court until after a conviction by a newly constituted military commission. Hamdan will likely argue that he is entitled to a declaratory judgment on the validity of the new tribunal system, without awaiting a conviction. Since those issues go to the District Court’s jurisdiction, Judge Robertson would have to confront them early on. (As of Thursday morning, the judge had not yet issued any further orders in the case. The case was formally returned to him immediately last Friday by the Circuit Court clerk )
If Hamdan is allowed to go forward with his challenges in District Court, his attorneys will claim that the new tribunal system is unconstitutional, because of restrictions on access to evidence, and other limitations. The Justice Department would counter, on the merits, that Congress has done what the Supreme Court’s ruling allowed it to do — craft a new tribunal system. That could trigger a major new controversy over whether detainees have substantive legal rights under the Constitution, if they may proceed under habeas.
Another issue almost certain to come up is the new bill’s ban on any reliance upon the Geneva Conventions by a detainee seeking to challenge either the war crimes tribunals, or any aspect of detention. Robertson, in his earlier ruling against the initial tribunal proposal, relied in part upon the Geneva Convention, and Hamdan’s lawyers insist that some Geneva issues remain to be litigated in his very case.
Lawyers representing Hamdan presumably have been fashioning a wide array of issues they will put forward, as the case moves along — assuming that it does.
An interesting issue will arise if Hamdan’s case should, in fact, turn out to be the main vehicle for testing the new legislation, or at least one of the early vehicles: will Chief Justice John G. Roberts, Jr., participate in any action the Supreme Court takes on that case in the future? Roberts, then a Circuit Court judge, participated in that Court’s 2005 ruling upholding the commissions. He thus took himself out of all aspects of the Supreme Court’s consideration of that case last Term. Whether new issues in the next round in Hamdan would make it possible for him to take part the next time remains unclear. The answer perhaps depends upon how intimately any new litigation is tied to the earlier case. (Without Roberts, the Court voted 5-3 in June.)
(Meanwhile, in another significant war-on-terrorism controversy, a federal judge in Detroit holds a hearing on Thursday on whether to postpone her August ruling against the National Security Agency’s eavesdropping program until after an appeal is decided. U.S. District Judge Anna Diggs Taylor has ordered an end to the program, so far as it reaches the telephones, e-mails or other electronic transmissions of individuals inside the U.S. However, she put the ruling on hold temporarily until she considered a formal government motion for a stay. The case takes on new importance in the wake of the decision by leaders in Congress this week to put aside efforts to revive the eavesdropping program, because too little time remains in the legislative session to resolve a host of disagreements over the bill.)
