Hamdan’s case: Longer list of constitutional issues
on Nov 17, 2006 at 7:39 pm
Lawyers for Salim Ahmed Hamdan, in a sweeping challenge to the new Military Commissions Act, on Friday added a handful of new fundamental constitutional complaints as they filed the first full-scale brief by opponents. Hamdan, whose case led last June to perhaps the most important Supreme Court ruling ever on presidential war powers, is facing war crimes charges before a military commission to be set up by the new Act.
The new 45-page brief seeking to head off that trial was filed in U.S. District Court; his case (04-1519) returned to the Washington court after the Supreme Court ruling. (UPDATE: A new amicus brief, filed by four retired generals, two retired admirals and a retired Central Intelligence Agency officer, supports Hamdan’s claim that he has a right to continued protection under the Geneva Conventions. That brief can be found here.)
The Justice Department takes the view, expressed in a number of pending cases, that the new Act stripped the federal courts of all jurisdiction to hear any habeas challenge by any war-on-terrorism detainee, no matter where that captive was taken prisoner. It notified the judge handling Hamdan’s case, U.S. District Judge James Robertson, and other federal judges in Washington of the passage of the new court-stripping provisions. Robertson, in turn, treated that notice as a motion to dismiss, and called for briefs on it. The government’s reply is due on Dec. 1.
Up to now, the main focus of attention on potential constitutional challenges to the Act has been on the claim that, if the Act is read to strip the courts of all power to decide any habeas plea by a detainee, it is unconstitutional as a suspension of the writ of habeas corpus. Hamdan’s new brief, of course, repeats that argument, after initiallly arguing that the Act was not written in a way that would actually scuttle existing habeas cases. If the Act did do that, this part of the brief goes on, it is an invalid suspension of the writ “because the narrow judicial review afforded under the MCA fails to provide an adequate substitute for habeas.”
But the brief also launches a broadside of other constitutioinal volleys against the Act. Here, in summary, are the main points as the brief recites what it calls “grave constitutional flaws” in the Act:
1. It violates separation-of-powers principles. The brief says it would tell the courts to ignore at least one specific holding of the Supreme Court in Hamdan’s case — his right to protection under the Geneva Conventions. It is aimed at settling pending cases in the courts in the government’s favor, thus trepassing upon the judicial function, the brief asserts. It would bar Judge Robertson from enforcing an existing order in Hamdan’s case against prosecution by the military commission system struck down by the Supreme Court, and might even bar the Supreme Court from enforcing its ruling against prosecution by the existing form of military commission. It would leave Hamdan, though he won his case, at the whim of the government when and how to try him under the new Act.
2. It sets up a new commission system perhaps more deficient than the one struck down. There would be no way to test the commission before trial, the brief says, and there may be no possibility of judicial review at all since the government would control whether a commission case was ever made final by Executive Branch action.
3. It amounts to an unconstitutional “bill of attainder.” The brief argues that the Act imposes punishment “by legislative fiat” on an identifiable group — wartime detainees.
4. It violates the guarantee of equal protection of the law. The Act, according to the brief, “relegates aliens (even lawful resident aliens) to an inferior brand of justice, thereby stripping them of fundamental rights.”
Many of these same arguments are likely to appear again as the Act faces challenges in pending cases in the D.C. Circuit Court, and in the Fourth Circuit Court, as briefing schedules unfold there.
