Swift responses to new law on detainees
on Oct 17, 2006 at 8:14 pm
Congress’ new legislation reacting to the Supreme Court’s June 28 decision in Hamdan v. Rumsfeld has now been signed into law. This is expected to set the stage for a variety of new challenges to various provisions in the new law, ultimately reaching the Supreme Court. At this early point, it is unclear which case or cases may provide tests that would go to the Court.
UPDATE, 8:14 p.m. Attorneys for Salim Ahmed Hamdan, the detainee facing war crimes charges before a “military commission” in the wake of Congress’ passage of the new commission bill, on Tuesday asked a federal judge in Washington, D.C., to allow new briefing on the impact of the new commission law on the judge’s authority to decide continuing issues in Hamdan’s case. His case is back in District Court following the ruling in his favor by the Supreme Court last Term. In the new motion, attorneys for Hamdan said that he continues to have a claim challenging his ongoing detention by the U.S. military. But, he said, the new commission law “puts in question this Court’s subject matter jurisdiction” over that claim. That part of the law, the motion argued, is “of doubtful constitutionality.” Moreover, it added, “the Constitution provides a right to habeas relief independent of statutory authorization, a privilege that has not been validly suspended.” The lawyers suggested that the briefing be done simultaneously on an expedited basis, but did not propose a specific schedule.
Shortly after President Bush on Tuesday signed into law a new bill on the government’s powers to deal with detainees captured during the war on terrorism, the Justice Department notified the U.S. Court of Appeals for D.C. of that action, and urged the Court to decide “forthwith” the existing challenges by detainees at Guantanamo Bay, Cuba, without further legal briefs. Lawyers for the detainees, however, promptly urged the appeals court to allow supplemental briefs.
In a letter to the clerk of the Circuit Court, found here, a Justice Department appellate attorney suggested that the three-judge panel should decide two packages of detainee cases on the present record. Attorney Catherine Y. Hancock noted that the new act wipes out all habeas challenges by any war-on-terrorism detainee, and that lawyers for detainees contend that this is an unconstitutional suspension of the writ. “That issue was raised and fully addressed at the March 22 argument, as well as in the prior rounds of supplemental briefing. The Court should therefore decide that issue and the merits of these appeals forthwith, based on the existing briefing,” Hancock’s letter said.
Hancock commented that the new Military Commissions Act of 2006 that the President signed “unambiguously eliminates District Court jurisdiction” over all of the detainees’ claims.
She also noted that the new Act “makes explicit” that no detainee may bring a challenge based on the Geneva Conventions. She asserted: “The Act, therefore, supports the Government’s argument that petitioners’ treaty claims should be dismissed.”
In the detainees’ motion for permission to file new briefs on the new law’s impact, found here, the attorneys argued that the Act raises a number of new issues: whether the law denies the appeals court authority to decide the pending habeas appeals and, if so, whether that is an unconstitutional suspension of the writ; whether the new law unconstitutionally bars Geneva Conventions claims; whether it unconstitutionally delegates to the Executive branch powers that belong to the courts, and whether the definition of “unlawful enemy combatant” must be interpreted to conform to “the laws of war.”
The detainees suggested that they should be allowed until Nov. 1 to file the new brief, with the government response, if any, in seven days, and a reply by the detainees in five days.
The Circuit Court has been weighing the detainees’ cases for months, has held two hearings, and has twice called for new rounds of briefings. The lead cases are Al Odah v. U.S. (Circuit >docket 05-5064) and Boumediene v. Bush (05-5062).
In the Hamdan decision, the Supreme Court struck down President Bush’s original plan for war crimes trials before newly established “military commissions.” Congress authorized the creation of a similar system in the new measure that is now law. That law also would channel all challenges to military commission decisions, as well as all challenges to any other military proceedings involving detainees, to a limited review process in the D.C. Circuit. In the Al Odah and Boumediene cases, two U.S. District judges in Washington, D.C., reached opposite decisions about whether the detainees at Guantanamo had any legal rights they could pursue in habeas, and whether any such rights might include some protection under the Geneva Conventions.
President Bush made a lengthy statement in signing the new measure at the White House. The full statement can be found here. A White House fact sheet highlighting some of the provisions of the new Act can be found here.
