Lawyers for a Guantanamo Bay detainee due to go on trial before a military commission next Monday renewed his plea for a delay, accusing the Justice Department of trying to deny a right to “his day in court” — civilian court. The argument came in a reply brief, filed Wednesday, a day before a federal judge is to hold a hearing on the postponement plea by lawyers for a Yemeni national, Salim Ahmed Hamdan.
In opposing the request, the Justice Department on Monday had argued that, after the Supreme Court on June 12 ruled (in Boumediene v. Bush, 06-1195) that detainees were entitled to a prompt court review of their detention, Hamdan’s counsel were engaged in an ironic effort to delay his “day in court.” That was a reference to the fact that a military court, the war crimes commission set to try Hamdan, was ready to move forward to judge his case. The Department argued that it should be allowed to proceed, and that the proceeding was an adequate substitute for civilian court habeas review.
But Hamdan’s attorneys countered that what he was seeking at this point in U.S. District Court was a delay of the commission trial while he obtained “his day in court — this Court.” The brief added: “Hamdan should not be tried at Guantanamo until this Court has a full opportunity to consider the grave issues he presents on the merits..”
The government, the brief said, “opens and closes its brief with the remarkable claim that trial by a Guantanamo Bay military commission actually constitutes the ‘day in court’ to which Boumediene has just held Hamdan is entitled.”
The attorneys also contended that government lawyers had engaged in “bait-and-switch litigation” because they had earlier successfully opposed his plea to have the Supreme Court hear his case alongside Boumediene and had said then that Boumediene would govern his claims, but now were arguing that Boumediene did not apply at all in the military commission setting.
U.S. District Judge James Robertson will hear the request for a delay of the war crimes proceedings at 10 a.m. Thursday. (This blog will provide coverage following the hearing.)
In the opening pages of the reply brief, Hamdan’s counsel briefly described several aspects of the military commission process that they contend shows it “is not nearly as ‘robust’ as the Government would have the Court believe.” For example, it suggests that prosecutors plan to use hearsay evidence obtained by coercive interrogation techniques, the commission has limited defense lawyers’ rights to discover evidence that might help his defense, and the commission has denied access to eight other detainees who could support the defense.
The brief also quoted statements from a former chief prosecutor that the war crimes trials were designed to achieve political value before elections, and by a Pentagon lawyer that the trials were set up to get convictions because acquittals could not be explained.
It also listed the specific harms that it contended Hamdan will suffer if he goes to trial before the legality of any such trial is resolved. “The proper course…is to fully resolve any doubts about the commission’s legality, fundamental fairness, and jurisdiction — and only then, if at all, commence prosecution.”
The brief contended that the Supreme Court’s Boumediene ruling “undermined” and “upended the foundations” of a commission trial. Responding to a Justice Department argument that the Court in Boumediene left intact a congressional bar to court review in advance of any commission proceeding so Judge Robertson has no jurisdiction to hear Hamdan’s challenge now, his counsel argued that Congress would have acted unconstitutionally if it had done that.
The Supreme Court, the brief added, gave detainees a constitutional right to challenge their detention by the military, and for Hamdan, what he is challenging is his “punitive detention” — the chance that, as a result of the commission trial, he may face “lifetime detention.”
“If individuals merely being detained have a right to challenge their detention,” the brief said, “then detainees who are set to be tried must have an even stronger right to challenge a trial that may result in life imprisonment or death. Those merely detained must be released at the end of the ‘particular conflict in which they were captured.’…Individuals tried by commissions face no such prospect of freedom….Since the Government views the commission as substituting for Hamdan’s right to a hearing to challenge his detention, Hamdan’s challenge goes directly to the lawfulness of his detention.”
Hamdan’s lawyers devoted a considerable part of their brief to answering the government argument that the commission process is an adequate substitute for civilian habeas review. This section leveled
s an array of criticisms not only at the commission trial process, but also at the layers of limited appeals allowed after convictions. The Boumediene decision, it notes, said that a full trial in court can sometimes be substituted for habeas review, but it adds that the commission is not a court in the sense the Supreme Court was discussing.
The second half of the reply brief went over individual constitutional claims that Hamdan has raised against the commission process, seeking to answer the government’s rejection in its brief of each of those claims.