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Debate over Boumediene‘s meaning

Lawyers for the Pentagon and for detainees now held at Guantanamo Bay have already engaged in a debate — at least in summary form — over the meaning of the Supreme Court’s June 12 ruling in Boumediene v. Bush (06-1195).  In short, the military lawyers contend that the detainees are now protected by only a single constitutional right, while the prisoners’ attorneys claim at least nine.

Mainly by coincidence, the constitutional dispute is playing out in the Pentagon’s war crimes case against a Yemeni national, Salim Ahmed Hamdan.  He is the same detainee who won an earlier Supreme Court decision that the detainees had some legal right to challenge their detention — rights that Congress then moved to sharply curtail, an effort that the Supreme Court partly overturned in Boumediene.

The new phase of the constitutional disagreement will unfold in July when Hamdan’s trial resumes on charges of providing support to the Al Qaeda terrorist network in Afghanistan.  Hamdan’s trial before a military commission was postponed on May 16 by the presiding judge, to await the Court’s ruling in Boumediene.

Under a ruling Thursday by the judge, Navy Captain Keith J. Allred, Hamdan’s defense lawyers are to file their motions making constitutional claims by July 2, and, depending on how those motions fare, the trial could start on July 21 — the first criminal trial growing out of the “war on terrorism.”

Allred rejected the plea of the detainees’ defense team to delay the trial until Sept. 22 to give them more time to prepare their constitutional claims in the wake of the Supreme Court decision.  The motion for a continuance summarized what at least some of those claims will be.  The Pentagon’s opposition filing gave its view of the very limited scope of Boumediene.   The judge said that the time up to July 2 will give the defense enough time to prepare their constitutional motions.

The judge’s ruling can be downloaded here.  (Attached to the two-page ruling are the defense motion for continuance and the prosecutors’ response.  Thanks to Howard Bashman of How Appealing blog for providing a link to the Miami Herald file on these papers.)

The defense, in its motion filed one week after Boumediene was decided, argued: “Boumediene was decided in a manner sharply adverse to the Government, rejecting numerous positions advanced, and authorities relied upon, by the Government in this case….The Boumediene holding that substantive and structural constitutional protections extend to Guantanamo has major implications for this case.”

The motion asserted that “a large array of constitutional rights and protections now must be considered, affecting all aspects of the substantive and procedural law that must be applied in this case.” It indicated that the defense team would offer, “at a minimum,” motions to apply nine specifically enumerated constitutional rights.

Here are the constitutional claims to be advanced:

1. A constitutional right to equal legal treatment, allegedly violated by any trial before a military commission (equal protection guarantee of the Fifth Amendment).

2. A constitutional right not to be forced to give evidence against himself, presumably based on alleged evidence obtained in interrogations (Fifth Amendment ban on self-incriminaton).

3. A constitutional right to due process, based on alleged use of testimony obtained by coercion or torture and denial of access to documents about the conditions at Guantanamo (Due Process Clause of Fifth Amendment).

4. A constitutional right to call witnesses who may aid the defense, based on claims of too-limited access so far to “high-value detainees” at Guantanamo — including some key Al Qaeda leaders (Sixth Amendment right to compulsory process).

5. A constitutional right to the aid of a lawyer, allegedly frustrated by conditions at Guantanamo that inhibit lawyer-client relationships (Sixth Amendment).

6. A constitutional right to confront adverse witnesses, based on a claimed prosecution plan to offer “50 items of hearsay evidence” at trial (Sixth Amendment).

7. A constitutional right to a speedy and public trial, allegedly violated by the mode and scheduling of military commission trials (Sixth Amendment).

8. A constitutional right to be charged by a grand jury, allegedly violated by the charges leveled here only by Pentagon prosecutors (Fifth Amendment).

9. A constitutional right not to be accused of a crime for actions that were not criminal at the time, a test of whether a military commission has jurisdiction because the accusations are not violations of the law of war (Ex Post Factor Clause in Article II, limiting Congress’ authorize to create new crimes after the fact).

Several of those, if granted, would result in dismissal outright of the case against Hamdan.  He would have to remain at Guantanamo, at least until a federal civilian court ruled on his habeas challenge to detention.

The Pentagon, in opposing the defense motion for more time to prepare challenges, argued that the Boumediene decision “is of little relevance” to a military commission trial.  There was only “a narrow holding” by the Supreme Court, that detainees have a constitutional right to pursue a habeas claim in District Court.  The decision, the prosecutors said, turned only on “the Suspension Clause” — that is, Congress’s violation of that Clause by seeking to bar habeas claims.

The detainees involved in the case, the prosecutors added, were not charged with any crime. Hamdan, by contrast, faces charges and will “receive a full and fair adversary process.”

The opposition also said: “If the court takes anything from the Boumediene decision, it should recognize the importance in preventing any further delay in the matter presently before it and deny the defense request.”

Judge Allred, while denying the motion to delay further, did not hint how he would react to any constitutional claims. He wrote: “The Commission is particularly interested in the parties’ views on what principles govern whether other constitutional provisions, such as those the defense intends to raise, apply in Guantanamo Bay.”