Government wants Hamdan case dismissed
on Dec 8, 2006 at 7:58 pm
This is another in a continuing series of reports on the lower court impact of the Supreme Court’s ruling last June in Hamdan v. Rumsfeld, striking down the Bush Administration’s initial plan for war crimes tribunals of detainees at the war-on-terrorism camp at Guantanamo Bay, Cuba.
The Justice Department on Friday urged a federal judge in Washington, D.C., to put an end to a habeas challenge by a Yemeni national, Salim Ahmed Hamdan, and to wipe out an earlier order that barred his trial by a U.S. military war crimes tribunal. Arguing that Hamdan has no constitutional rights he can assert in federal court, the Department suggested that he could pursue a limited appeal in D.C. Circuit Court if he is ever convicted of war crimes by a “military commission” or an even more limited challenge there to his detention.
The government’s 56-page brief, found here, sets the stage for the first — or one of the first — federal court rulings on the constitutionality of the new Military Commissions Act. Congress passed that measure (Public Law 109-366) in October in the wake of the Supreme Court’s decision in Hamdan’s case last Term. Hamdan’s lawyers have raised a variety of constitutional challenges to his detention and to his potential trial before a military tribunal. The briefing is now completed on those arguments, as well as on the government’s move to dismiss Hamdan’s case altogether, and thus U.S. District Judge James Robertson could rule at any time. In yesterday’s brief, the Justice Department sought to refute every one of Hamdan’s constitutional claims, and suggested that he had no right (no “standing:) to raise most of them.
Most of the same challenges to U.S. policies of detention of foreign nationals during the war on terrorism are also being weighed now by the D.C.Circuit Court. While briefing is also complete there, there is no indication when it will rule. The government, by implication, urged Robertson to hold off until after the Circuit Court acts, since it said the coming ruling there would impact Hamdan’s case, too. But, in the meantime, the government contended that Robertson should wipe out his November 8, 2004, order that barred a military commission trial of Hamdan on a conspiracy charge.
The 2004 order, the federal brief said, only applied to the militiary commission system that existed before it was nullified by the Supreme Court. The new system authorized by Congress in October is not yet operating, and Hamdan has not been charged anew, the brief noted. Thus, his claims against a military war crimes trial are premature. At most, it suggested, Judge Robertson should transfer Hamdan’s case to the D.C. Circuit Court to weigh his claim that he has not been properly designated as an “enemy combatant” by a military status tribunal at Guantanamo.
Aside from comments the government brief made specific to Hamdan’s case, its legal arguments closely paralleled those it has made in several other pending detainee cases: the detainees have no constitutional rights to assert in U.S. courts, Congress has taken away any right they had before to challenge their detention or potential prosecution, that withdrawal does not viiolate the Constitution’s bar on suspending habeas because Congress has set up an adequate review alternative in D.C. Circuit, and that there is no merit in the argument of detainees’ lawyers that Congress did not intend in its October legislation to keep alive any pending habeas cases.
