Detainees seek quick Court ruling

By Lyle Denniston
on Feb 27, 2007 at 12:52 pm

Two Guatanamo Bay detainees, both facing war crimes charges before U.S. military “commissions,” on Tuesday asked the Supreme Court to put their joint appeal on a fast track for decision in the current Term. The motion to expedite involves the first two rulings by federal courts on Congress’ move last year to strip the federal courts of any authority to hear habeas challenges by prisoners at the military prison camp at Guantanamo Bay, Cuba. The motion can be found here. The petition for review is expected to be filed shortly, and will be posted when it is available.

Putting the court-stripping issue before the Court in the new case are Salim Ahmed Hamdan, a Yemeni national who was the detainee in last Term’s decision in Hamdan v. Rumsfeld nullifying a White House version of new military commissions, and Omar Khadr, a Canadian national. On Feb. 2, the Pentagon notified both of them (along with an Australian, David Hicks) of new charges they will face at war crimes trials. President Bush recently authorized the startup of the new trials at the Cuba camp, but none has yet begun.

The new appeal is a combined effort by the two detainees, seeking speedy review of two separate court rulings. Hamdan is challenging a ruling last Dec. 13 by U.S. District Judge James Robertson, dismissing Hamdan’s habeas challenge and finding the federal courts lost jurisdiction over all such claims when Congress passed the Military Commissions Act of 2006 last Fall. Robertson also rejected a constitutional challenge to the Act’s court-stripping provision. Ordinarily, Hamdan’s initial appeal would go to the D.C. Circuit, but he is asking the Supreme Court to step in now to hear his case. The Court has no specific rule on how many votes among Justices it would take to bypass the Circuit Court, but the common understanding is that five Justices must support the maneuver. It would take a similar majority to expedite the case for review.

Khadr is challenging the ruling Feb. 20 by the D.C. Circuit Court, ordering the dismissal of scores of Guantanamo detainee cases in the District Courts, and finding no constitutional violation in Congress’ move to scuttle those cases. Khadr was one of a sizeable number of detainees involved in two packets of cases before the D.C. Circuit.

Lawyers for other detainees are expected to file their own petition for review in the Supreme Court, within a matter of days — that is, by no later than Monday. While Khadr is facing war crimes charges, as is Hamdan, almost all of the other detainees involved in the D.C. Circuit case have not been charged with any crime, and are seeking to challenge their continued imprisonment and their designation by the military as “enemy combatants.” The Hamdan/Khadr motion argued that differences in their case from the other detainees’ coming appeals make their case “logical and necessary companions to this Court’s consideration” of the other detainee challenges.

The motion told the Court that, in those other detainee appeals, the detainees’ lawyers and the Justice Department have agreed to have those cases expedited before the Court. The Justice Department has refused to support expedited review of Hamdan’s appeal.

The new motion asks the Court to order briefing so that the government would respond to the coming appeal by March 21 — the same schedule, according to the motion, that the two sides have agreed to follow in the other detainee cases. The cases “are so closely related” that they should be heard on the same schedule, the motion argued. The motion did not suggest a hearing date, but lawyers are hoping the Court will schedule the cases for argument in May.

The motion said that, under military commission procedures, the formal referral of charges against Hamdan and Khadr is “imminent.” “One of the primary rights [they] seek to vindicate in this case is the right not to be tried by a military tribunal that lacks jurisdiction over them,” they said. Without expedited Supreme Court review, they added, they may lost forever whatever right they may have not to be tried.

Since the lower court rulings take away any constitutional protection for detainees, the motion argued, they cannot prepare for trial “as they do not even know if due process and other fundamental rights secured by the Constitution will govern their trial and punishment. Such uncertainty, in turns, makes a plea nearly impossible.”

“Expediting review would serve the dual purpose of prompt determination of the legality of the jurisdiction-stripping provisions of the MCA in the two related contexts in which it is presented” — for those facing war crimes charges, and for those detained as “enemy combatants, the motion said.

In the Pentagon’s Feb. 2 notice of the new charges, it said Hamdan was accused of conspiracy and providing material support for terrorism, and Khadr was accused of those same two offenses, as well as spying, murder and attempted murder. The conspiracy charge appears close to the same accusation that four Justices of the Supreme Court found wanting in last Term’s decision in Hamdan’s case.