Hamdan case now ready
on Jul 24, 2007 at 2:16 pm
Lawyers for Salim Ahmed Hamdan, facing war crimes charges before a military commission, on Tuesday filed the concluding papers in his new appeal seeking to have the case reviewed along with next Term’s review of two other detainee cases. With the filing of two reply briefs, and with the earlier waiver of the usual ten-day delay between filings and submission to the Court, Hamdan’s counsel has made the papers available for early action by the Justices, if they wish — even though the Court is in summer recess. The first chance for orders in the case will come next Monday, July 30, when the Court issues its initial round of orders during the recess. Other orders will emerge on Aug. 20 and 31.
Hamdan’s case challenges the government’s authority to try him for war crimes before the new trial tribunals established by the Military Commissions Act of 2006. The other detainee cases challenge the government’s authority to continue to hold detainees who have not been charged with any crimes. Hamdan’s counsel contends that the cases are different from each other in some respects, but complementary, so Court review of his case, too, is necessary to put the full array of detainee challenges before the Justices.
The attorneys had told the Court that, if it agrees to hear Hamdan’s new plea, they will follow the briefing schedule that the Court already has set for the other detainee cases (Boumediene v. Bush, 06-1195, and Al Odah v. U.S., 06-1196) — that is, opening brief by petitioners due Aug. 24, government brief in opposition due Oct. 9.
Counsel for Hamdan and the government have agreed to expedition on his two alternative requests — that is, “two procedural vehicles from which the Court may choose,” as Hamdan’s lawyers have put it. Thus, the Court has been asked either to grant review of a new petition (07-15) to hear Hamdan’s claims before the D.C. Circuit rules on them in an appeal now pending there, or grant rehearing of the Justices’ denial on April 30 of an earlier Hamdan petition before judgment by the Circuit Court (06-1169) and proceed to review that case. The latter request can be pursued only if the Court were to give permission to file the rehearing request, because it was filed late.
Tuesday’s filings included this reply brief in 07-15 and this reply brief on the question of rehearing in 06-1169. (The U.S. Solicitor General has opposed both maneuvers, although Hamdan’s filing on Tuesday argued that the government’s opposition on the rehearing issue was itself filed late and should not be considered by the Court.)
Hamdan’s counsel argued that no purpose would be served by delaying the case attacking the entire war crimes commission system. There is “significant potential upside to having a concrete case before this Court to help resolve” the added constitutional questions that Hamdan is seeking to raise beyond those pending in the other detainee cases. The other cases, the brief added, do not raise the three separate constitutional arguments being made by Hamdan — separation of powers, Bill of Attainder, and equal protection.
Even if the Court were to rule that the other detainees have lost their right to pursue habeas challenges to their detention, the reply brief contended, that still would leave unanswered Hamdan’s argument “that habeas is available to allow challenges to the separate commission process.” And, if the Court were to rule in favor of the other detainees’ challenges, that would not resolve Hamdan’s claim that a detainee facing war crimes charges should retain a similar right to habeas.
While the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006 both set up limited review of detainee cases in the D.C. Circuit Court, the Hamdan reply argued that the laws governing challenges to detention differ from those on challenges to war crimes trials. “The relevant distinction is not the identity of the respective petitioners but the nature of the government action each challenges,” the brief argued.
While the two laws set up Circuit Court review of a limited nature, “they are not identical,” according to Hamdan’s counsel. There is a significant difference, they added, “between administrative detention” — what is at stake in the other detainee cases — “and criminal prosecution” — what is at stake in cases involving detainees awaiting war crimes trials.
