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Judge refuses to delay war crimes trial

UPDATED 3:55 p.m.

Bowing to the President, Congress and a higher court, U.S. District Judge James Robertson in Washington refused on Thursday to delay the trial of a Yemeni national on war crimes charges — a trial, the first of its kind, scheduled to begin next Monday before a military commission at the U.S. Navy base at Guantanamo Bay, Cuba.

Speaking for eight minutes before a nearly-full courtroom, the judge issued an oral ruling after a two-hour morning hearing and said he would issue a written opinion — probably by tomorrow morning — so that either side could challenge it in the D.C. Circuit Court, if they wished.  Lawyers for the detainee, Salim Ahmed Hamdan, said they would study the ruling and decide later whether to appeal. Hamdan is now going through pre-trial proceedings at Guantanamo on charges of conspiracy and providing “material support” to terrorism.  He is often referred to publicly as the former driver for terrorist chief Osama bin Laden.

Judge Robertson based his ruling in part on the fact that Congress and the President had worked together to establish military trials of detainees in the Military Commissions Act of 2006, and had decided in that law that any review of the fairness of such a trial should occur after “final judgment” and not before. “A court should be reluctant to disturb their judgment,” the judge said.

He also relied on a recent ruling by the D.C. Circuit Court in another detainee’s case, saying that all of the challenges that are raised against military commission trials can be addressed once a trial is over. The Circuit Court ruled on June 20, in Khadr v. U.S., that it had no jurisdiction to hear the challenge of a Canadian detainee, Omar Ahmed Khadr, to his war crimes trial, because there was no “final judgment.”  (A post on that decision can be read here.)  Lawyers for Khadr had joined this week in supporting Hamdan’s plea to delay his trial; Khadr is to go on trial later at Guantanamo.

Judge Robertson commented that lawyers for Hamdan had raised “novel and complex” constitutional issues but concluded that he did not need to address those at this time. (Click the following links to read Hamdan’s request for a preliminary injunction, the government’s brief in opposition, and Hamdan’s reply brief.)

Hamdan’s military commission trial is to be the first of what may be about 80 such trials of detainees now at Guantanamo — including cases against so-called “high-value” detainees, some of whom are facing charges growing out of alleged roles in the 9/11 terrorist attacks. So far, 20 detainees have been charged with crimes.

Although Judge Robertson noted that his ruling allowing such a trial to proceed only applied to Hamdan, his decision was a setback to all of the detainees now awaiting prosecution on war crimes charges. First, Robertson was one of only a few judges on the District Court bench in Washington who might have been persuaded to delay such trials; he ruled once before that Hamdan could not be tried, under a system set up by President Bush (and later struck down by the Supreme Court and then replaced by the MCA system).  Second, another federal judge who is coordinating more than 240 detainee cases pending in District Courts has put at the end of the line, for processing, the habeas challenges of detainees facing military commission trials.  That could mean that the Justice Department and Pentagon do not even need to respond to those captives’ habeas challenges until months from now, if at all.

It was unclear Thursday whether Hamdan’s claim that he is being unlawfully detained — a claim that was closely intertwined with his constitutional challenges to the war crimes trials procedures — could now go forward before Judge Robertson simultaneously with the trial at Guantanamo.  Nothing in the judge’s oral ruling addressed that question, since it was limited to the plea for delay only.

One of the government’s most sweeping challenges to any delay of Hamdan’s Guantanamo trial was that Congress had taken away the authority of District Court judges to issue any orders dealing with the military commission process, since the MCA law had set up a trial procedure that would be followed only by appeals through a military review system, and then the D.C. Circuit Court and, perhaps, the Supreme Court.  At the outset of his oral ruling, Judge Robertson took note of that issue and Hamdan’s argument that, if Congress had intended to go that far, it had acted unconstitutionally by suspending the writ of habeas corpus.

Citing what he said was a “deeply rooted doctrine” that courts should decide constitutional issues only if they could not be avoided, the judge said he would not resolve that issue.  He also said he would not decide the claim by Hamdan’s lawyers that the military commission system was invalid because it was not an adequate substitute for habeas review.  Some judge, he said, may have to face those questions some day, but added that he did not think he needed to do so at this point.

Throughout Thursday’s hearing, the judge had seemed mildly surprised at the breadth of the Justice Department’s argument against his authority to intervene in any way in the military commission system. A couple of times, he pressed the Department lawyer, Deputy Assistant Attorney General John C. O’Quinn to repeat the point, so the judge was clear on its scope.

But, also throughout the hearing, the judge seemed skeptical about his authority to oversee the specific rulings by the military trial judge as the case went along, and voiced doubt that the Supreme Court decision on June 12 in the Boumediene v. Bush case, on detainees’ rights, went far enough to give him that kind of role.   He asked Hamdan’s lawyer, Georgetown law professor Neal Katyal: “Do you expect all these questions [about war crimes trials procedures] can be raised in the abstract before trial? Why would that not be giving an advisory opinion?” Katyal responded that, in the proceedings up to now in Hamdan’s case in Guantanamo, the commission had already made “a concrete track record that this is going down the wrong path….going off the rails.”

Another of Hamdan’s civilian lawyers, Joseph M. McMillan of Washington, who had just returned from Guantanamo, ticked off a list of recent rulings by the military judge that he argued indicated that the process is not fair.  Hamdan “has already been prejudiced, these things have already happened,” the attorney contended.

After the hearing had run for just short of two hours, the judge announced that “the parties need a decision; you’re going to have it in about 10 minutes.” After leaving the bench to “review my notes,” the judge returned, and announced his denial of the Hamdan motion.  At that point, he said, he was providing only “a brief outline” of the opinion that would come in written form  Friday.

After that opinion has been released, Hamdan’s defense team is expected to decide whether to take their challenge on to the D.C. Circuit and/or to the Supreme Court.