Hamdan seeks to appeal directly
on Feb 7, 2007 at 6:02 pm
Attorneys for Salim Ahmed Hamdan plan to ask the Supreme Court to hear his challenge to trial before a U.S. military commission, rather than pursue the case first through the D.C. Circuit Court. Hamdan won an earlier appeal to the Supreme Court when it struck down the prior military commission system; that system has now been replaced under a new act of Congress, the Military Commissions Act of 2006. Last Friday, officials at Guantanamo Bay, where Hamdan is being held, said they had prepared a new terrorism conspiracy charge against Hamdan, a Yemeni national. That appears to be a parallel count to the one that four members of the Supreme Court questioned last Term as valid. The new charge will not be formal until approved by a Pentagon legal adviser.
On Dec. 13, U.S. District Judge James Robertson in Washington dismissed Hamdan’s case, finding that Congress had legally ordered dismissal of all pending habeas cases filed by foreign nationals being held by the U.S. military.
The normal path for Hamdan’s appeal from Robertson’s decision would be to the D.C. Circuit. But federal law and Supreme Court rule (Rule 11) permit an appeal to the Supreme Court prior to Circuit Court action. Before a request can be made for the Supreme Court to take a case ahead of the apeals court, an appeal must be pending in the Circuit Court. Hamdan’s lawyers filed that appeal on Tuesday, and have now notified the Circuit Court that they will be asking the Supreme Court to step in, the attorneys have indicated. The Court’s Rule 11 specifies that review ahead of a Circuit Court will be granted “only upon a showing that the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this Court.”
In papers filed Tuesday at the D.C. Circuit, Hamdan’s lawyers asked that Court to hold his appeal there while review by the Supreme Court is sought. That motion can be found here. They said they would file their petition in the Supreme Court “very shortly.” If review is granted there, the case need not go forward in the Circuit Court, they noted.
The initial task of Hamdan’s attorneys will be to persuade the Justices that his case fits into the narrow category for “certiorari before judgment” appeals. Hamdan tried to get such a speeded up review of his prior appeal challenging the military commission system, but the Supreme Court would not permit it (Hamdan v. Rumsfeld, docket 04-702, denied Jan. 18, 2005). After the Circuit Court had rejected that challenge, Hamdan filed a regular appeal to the Supreme Court, resulting in a sweeping victory for him last June 29 (Hamdan v. Rumsfeld, 05-184). After that, Congress passed the new Military Commissions Act.
Among the issues that are certain to be raised in the new Supreme Court appeal are the scope of Congress’ court-stripping provision in the new Commissions Act and, if habeas cases have all been scuttled by that provision, whether Congress has unconstitutionally suspended the writ of habeas corpus. Judge Robertson found that all cases had been ordered dismissed, but ruled that was not a suspension of the writ.
It is possible that Hamdan’s attempt at a swift appeal will reach the Supreme Court before other detainees at Guantanamo Bay, not facing military commission trials, can file a new appeal challenging their prolonged detention. The D.C. Circuit Court has been weighing two packets of detainees’ cases, raising a number of issues, including the impact on those cases of the new Commissions Act’s court-stripping provision. That Court had been expected to decide those cases by now, since they have been on an expedited schedule and all briefing has been completed, but no decisions have been forthcoming yet. There is no way to know when it will rule.
Hamdan’s lawyers, besides asking the D.C. Circuit to take no action on his new appeal there while he pursues Supreme Court review, also asked it to hold the case until the Circuit Court has decided the other detainee cases, which raise similar questions of jurisdiction. (The other detainee cases are Boumedine v. Bush, Circuit docket 05-5062, and Al Odah v. U.S., 05-5064, and consolidated cases.) If those decisions come fairly soon, they conceivably could go to the Supreme Court and potnetially be consolidated with early review of Hamdan’s case, if granted, his attorneys suggested in their Tuesday filing.
It is unclear whether Chief Justice John G. Roberts, Jr., will take part in any action by the Supreme Court on a new Hamdan appeal. Roberts took himself out of the earlier case, because he had been a member of the Circuit Court on the panel that upheld the previous system for military commission trial in Hamdan’s case. Conceivably, the passage of new legislation and a new charge against Hamdan could make it possible for him to participate this time. The matter is entirely his choice.
