Hamdan case returns to Supreme Court
on Jul 2, 2007 at 4:40 pm
UPDATE July 7: The new petition for review is now docketed as 07-15.
Attorneys for Guantanamo detainee Salim Ahmed Hamdan returned to the Supreme Court on Monday, asking the Justices to grant his case and hear it along with two other appeals by detainees now scheduled for review in the next Term. The Court on Friday switched course, and decided to consider the other cases after having denied them on April 2. Hamdan’s case differs because it involves a detainee who is likely to face a war crimes trial before a “military commission.” Only one of the detainees in the other cases is facing such charges. Moreover, Hamdan’s challenge raises added constitutional questions. (The case is titled Hamdan v. Gates. Previously, the case was docketed as 06-1169. A new petition for review, just filed, has not yet been assigned a docket number.)
If review is not also granted in the Hamdan case, his lawyers told the Justices, “the Court will not resolve the full array of legal challenges in the range of contexts that exists to the Military Commissions Act of 2006…As the nation is almost six years beyond September 11, 2001, there is substantial interest in the Court comprehensively addressing without further delay the lawfulness of the system for detaining, charging, and trying the Guantanamo detainees.”
Hamdan’s case is currently pending in the D.C. Circuit, following the Supreme Court’s refusal on April 30 to hear an earlier appeal. In that prior petition, Hamdan was appealing directly from a District Court order to dismiss his case under MCA, and his lawyers asked the Justices to take his case without awaiting review in the Circuit Court. At the moment, the Circuit Court is considering a plea by Hamdan — opposed by the Justice Department — to initially consider his case en banc rather than by a three-judge panel.
In Court filings in the Supreme Court on Monday, Hamdan’s counsel sought permission to file for rehearing in 06-1169 even though a deadline for doing so had passed (that document can be found here), submitted a rehearing petition in 06-1169 (that can be found here), filed a new petition for certiorari (that can be found here), and made a motion to expedite the case and hear it along with the other detainee appeals (that can be found here).
The new petition, like the one before the Court previously (06-1169), is a plea for the Court to hear the case prior to a final ruling by the D.C. Circuit. That Court has taken no final action on the case as it stands there.
Because the Supreme Court’s Rules discourage rehearing pleas unless there is a significant change in circumstance, Hamdan’s attorneys said that the order last Friday granting review of the other case was “by any measure, an extraordinary and rare event.” The lawyers also said that they did not file a rehearing petition earlier, within the time specified by the Rules, because lawyers had done so in the other cases and Hamdan’s counsel did not want to “burden the Court at that time with multitudinous filings.” His counsel also noted that they did not waste any time seeking rehearing after the Friday grant order in the other cases.
If review is now granted, Hamdan’s counsel promised to meet any briefing schedule that is set for the other detainee appeals (the other cases are Boumediene v. Bush, 06-1195, and Al Odah v. U.S., 06-1196). The Court has not laid down a schedule for the other cases, because it is awaiting a ruling by the D.C. Circuit on the procedures that Court will follow in reviewing military detention orders for prisoners at Gantanamo Bay, the U.S. military prison camp in Cuba.
The new Hamdan petition raises these questions (only slightly modified from the questions presented in 06-1169):
“This case presents a question also presented by the petitions for certiorari granted in Boumediene v. Bush, No. 06-1195, and Al Odah v. United States, No. 06-1196:
“1. Do detainees at the Guantanamo Bay Naval Base in Cuba have access to habeas corpus under the Constitution or by statute?
“In addition, this case presents two further questions, which make it a logical and necessary companion to Boumediene and Al Odah:
“2. Is the Military Commissions Act of 2006 (“MCA”), which purports to strip federal courts of habeas jurisdiction with respect to Guantanamo Bay detainees, unconstitutional because it violates separation of powers, the Bill of Attainder Clause, and Equal Protection guarantees?
“3. Even if the MCA validly withdraws habeas jurisdiction over petitions filed by individuals detained as alleged enemy combatants, is the petitioner in this case, who faces a criminal prosecution before a military tribunal and sentence of life imprisonment, nevertheless protected by fundamental rights secured by the Constitution, including the right to challenge the jurisdiction of such a tribunal via the writ of habeas corpus?”
This is the Yemeni national’s third case put before the Court. In the first, he challenged the war crimes prosecution system set up by President Bush, and the Court struck down that system in Hamdan v. Rumsfeld in 2006. After that, Congress wrote a new law, the MCA, to set up a new system of war crimes tribunals — “military commissions.” The Supreme Court has yet to hear a case challenging those tribunals. That is what Hamdan’s second appeal sought — the one that the Court denied on April 30 — and it is what his new appeal now seeks.
Hamdan’s war crimes trial actually did get a start on June 4 at Guantanamo, but the military judge promptly dismissed the charges, finding a flaw in the way Hamdan was charged. The Pentagon has asked that judge to reconsider, but there has been no action yet on that plea.
Only two other Guantanamo prisoners have been charged with war crimes — Omar Khadr, a Canadian, who is one of those appealing in the other detainee cases the Justices will hear (the charges against Khadr also have been dismissed), and Australian David Hicks, who pleaded guilty and will be sent to his home country to finish serving a sentence. The Pentagon, however, has said that as many as 80 may be charged.
Among the arguments that the new Hamdan petition makes for hearing the case alongside the other detainee appeals, the document seeks to head off what it speculates may be a government tactic if only the other detainees cases are decided. “If this Court were to only review Boumediene and Al Odah and hold that detainees had a right to review of their detention and [combatant status determinations by the military], the government could immediately charge those individuals before military commissions and escape the ambit of the Court’s ruling. By considering this case along with Boumediene, the Court can conclusively determine the nature and scope of constitutional rights, including habeas, enjoyed by all the detainees.”
Technically, the new round of filings for Hamdan gives the Court three options: reconsider its denial of 06-1169 and grant review now, grant review of the new petition, or treat the new petition as a plea for an extraordinary writ. Either approach, the petition said, “will permit the Court to hear his case.”
