Attorneys for Yemeni national Salim Ahmed Hamdan, who is facing a potential war crimes trial at Guantanamo Bay, Cuba, asked the D.C. Circuit Court on Friday to put his constitutional challenge before the full Circuit Court bench for decision. The lawyers sought en banc review to pursue an overruling of the Circuit Court’s Feb. 20 ruling ordering dismissal of detainees’ cases. As an alternative, Hamdan’s attorneys asked for a three-judge Circuit Court panel to rule summarily on his case so as to clear the way for a new appeal to the Supreme Court.

The plea for en banc review before the Circuit Court’s ten active judges was made as both sides in Hamdan’s case filed suggestions on what the Circuit Court should do with his case in the wake of the Supreme Court’s April 30 refusal to hear his appeal prior to any action in the appeals court. Hamdan’s case had been on hold in the Circuit Court pending that appeal, and on May 9 the Circuit Court told both sides to file within 30 days recommendations on what should happen next.

The Justice Department, in its own motion, urged the Circuit Court to summarily dismiss Hamdan’s appeal. “It is clear now that there is no federal court jurisdiction” over Hamdan’s case, either in a U.S. District Court or in any appeals court, so “the only recourse” is to end the case by simply ratifying a District Court ruling last December seeking ordering dismissal of Hamdan’s challenge.

Hamdan’s motion on what the Circuit Court should do now can be found here. The Justice Department’s motion for summary affirmance of dismissal is here.

Hamdan is one of two Guantanamo detainees who had been scheduled for trial on war crimes charges before “military commissions” at the U.S. military prison in Cuba. The other is a young Canadian, Omar Ahmed Khadr. Last Monday, however, two military judges at Guantanamo ordered the charges against the two prisoners detained because of a legal flaw in their cases. (NOTE: On Friday, a Pentagon spokesman told reporters that the military will ask the two judges to reconsider their rulings) In the new filing in D.C. Circuit Court, Hamdan’s counsel said that, despite the dismissal, he still expects to face war crimes charges before a “military commission” and thus he continues to press his challenge to the constitutionality of the entire commission process.

In its Feb. 20 decision in cases involving Guantanamo detainees who do not face war crimes charges or any other charges, the D.C. Circuit ruled that Congress in the Military Commissions Act of 2006 had wiped out all habeas rights of foreign nationals captured as terrorism suspects, and it ordered all such cases dismissed. The Supreme Court has twice refused to review that decision. In that decision, in Boumediene v. Bush, the Circuit Court did not rule directly on whether prisoners like Hamdan and Khadr facing war crimes trials had lost their habeas rights. But, Hamdan’s attorneys conceded, the “sweeping language” of the Boumediene opinion “would presumably bind any subsequent panel deciding” the legal fate of Hamdan, so the only way to challenge that decision would be before the en banc Court. The full Court would not be bound by the panel ruling, and in fact the panel ruling would be set aside if en banc review were granted.

The Hamdan filing summed up his request this way: “Mr. Hamdan respectfully requests that the Court order initial en banc review to determine the applicability of the Boumediene decision to military commission cases, and, if necessary, to overrule it. In the alternative, that Court should summarily adjudicate that question, without the delay of additional briefing by the parties, so that Mr. Hamdan may seek further review in the Supreme Court of the United States at the earliest available opportunity.”

In the brief Justice Department motion for dismissal, government lawyers noted that the Supreme Court had twice refused to review the Circuit Court’s Boumediene ruling. That, they said, “underscores the fact that that decision is binding, and that [Hamdan] has no legal grounds to postpone dismissal of his habeas case.” If Hamdan wishes to challenge his designation as an “enemy combatant,” the only way he can do that is to seek review in the D.C. Circuit under the Detainee Treatment Act of 2005. There is, though, no jurisdiction over his District Court habeas challenge, and the Circuit court has no jurisdiction to hear any Guantanamo habeas case pending before it.

The government noted that the Circuit Court has been dismissing other Guantanamo cases on the basis of its Boumediene ruling.

Since April 2004, Hamdan has been pursuing a habeas challenge to the impending war crimes trial before a “military commission.” The Supreme Court ruled in June last year that he could not be tried by a commission under the system then in existence. After that, Congress passed the Military Commissions Act setting up a new system of war crimes courts, and along with that, passed the court-stripping provision against detainees’ habeas claims. On the basis of the MCA, U.S. District Judge James Robertson last December ordered Hamdan’s habeas plea dismissed. Hamdan then filed an appeal to the D.C. Circuit (docket 07-5042), but promptly moved to the Supreme Court, asking it to hear his challenge before any action came in the D.C. Circuit. That was the plea the Justices refused to hear on April 30, over the dissents of three members of the Court.

Now that his case is back in the Circuit Court, it will be assigned to a new three-judge panel, unless the full Court grants the Hamdan request for en banc review.

In the new filing, Hamdan’s lawyers said that, if he is denied a chance to challenge the legality of the war crimes trial process now, his “only recourse is to challenge the jurisdiction of the commission on a post-conviction basis, a remedy that is of little value once his trial has already been conducted.” He should not have to undergo a trial before an “unlawful criminal court” with the power to impose a sentence of life in prison or death, the attorneys argued.

With a separate petition for initial en banc review, Hamdan’s counsel laid out the issues they will be raising on appeal: (1) does he retain habeas rights to challenge “an illegal trial scheme before that trial takes place”; (2) whether the MCA is unconstitutional because it violates separatiion of powers doctrine, amounts to legislative punishment (a “bill of attainder”), or violates guarantees of legal equality; and (3) whether, even if stripped of a habeas right based on a federal law remains protected by a constitutionally-based right of habeas corpus.

That petition is a full recounting of the arguments that Hamdan’s lawyers have been making from the beginning, in courts at all levels. It is clear that most of the points are aimed at the five Justices on the Supreme Court who ruled in Hamdan’s favor in his initial, successful appeal challenging the first version of the military commissions — the five who no doubt will hold decisive votes when a new case goes back to the Justices. That could not occur before the new Term starting Oct. 1.

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