U.S.: Let war crimes trials begin
on Jul 15, 2008 at 6:08 am
UPDATED 9:30 a.m.
Arguing that it is “far from clear” that Guantanamo Bay detainees have any constitutional rights when tried on war crimes charges, the Justice Department late Monday urged a federal judge not to delay the first trial — due to start in seven days.
In a 64-page brief in opposition, the Department said that Congress has taken away the authority of federal judges to intervene to review the military commission trial process before a conviction has resulted. It also contended that the commission process itself provides “unprecedented” legal protection for detainees but that, if there is any claimed flaw in the proceedings, that can be challenged in a civilian court reviewing any verdict.
The brief was filed in the case of Salim Ahmed Hamdan, a Yemeni national who is now due to go on trial July 21 in 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.
U.S. District Judge James Robertson in Washington is considering a challenge by Hamdan’s lawyers to his impending trial (see this post on July 3). Hamdan’s reply brief in Hamdan v. Gates (docket 04-1519) is due Wednesday, and the judge will hold a hearing at 10 a.m. Thursday.
Hamdan’s challenge, and the government’s response, set up a potentially major conflict over the meaning of the Supreme Court’s June 12 decision in Boumediene v. Bush (06-1195), clarifying some of the legal rights of Guantanamo detainees. Hamdan’s lawyers contend that the Boumediene decision undercut the very basis of military commission trials, while the government responds that Boumediene had nothing to do with the commission system.
Strongly resisting judicial review of war crimes cases before trials start, the Justice Department said Monday that Hamdan’s plea “is not without some irony. In the days since the Supreme Court’s decision in Boumediene, the Guantanamo habeas petitioners have urged the judges in this District to hasten the arrival of their day in court. For…Hamdan, that day has arrived; yet, he would have this Court delay an adjudication of facts and second-guess preliminary legal determinatons made by the [military] commission, which may be reviewed in full by the D.C. Circuit on appeal. This he may not do, particuarly through the ‘extraordinary and drastic remedy’ of a preliminary injunction.”
Congress, the brief went on, “has funneled challenges” like Hamdan’s into the military commissions, with review by the civilian courts “after adjudication, not before.” That makes the commission system now in place “radically different” from the presidentially created commission process that the Supreme Court struck down in 2006″ in an earlier appeal by Hamdan, the brief argued. (That 2006 ruling was followed by Congress’ passage of the Military Commissions Act, setting up a new trial and appeal system for war crimes cases. No court has yet ruled on the constitutionality of that law.)
Meanwhile, Judge Robertson last Friday allowed a group of 375 current of former members of the British Parliament or of the European Parliament to file an amicus brief supporting Hamdan’s challenge and contending that parts of the war crimes trial process “are clearly at odds with the most basic norms of fair trial and due process reflected in international humanitarian and human rights law and guaranteed by…the Geneva Conventions.” The brief is here and the list of its signers is here.
Two other detainees facing war crimes trials — Omar Khadr and Ahmad Mohammad Al Darbi — on Monday asked Judge Robertson to allow them to file a brief supporting Hamdan’s challenge. They, too, have habeas challenges in District Court to their impending trials by military commission. Khadr is claiming that, as a juvenile (age 15) when captured, he cannot be tried by a commission. Al Darbi contends that he was captured more than a thousand miles away from any battlefield — in Azerbaijan.
The government’s new brief, while noting that Hamdan’s lawyers have sought to raise five constitutional challenges to his commission trial, argued that Judge Robertson need not rule on those either because his Court has no jurisdiction to hear the pre-trial challenge, or because the judge should “abstain” from nterfering with an ongoing criminal justice process.
The challenge to District Court jurisdiction is keyed to the government’s interpretation of what the Supreme Court did in the Boumediene decision last month.
Under the Military Commission Act. the brief noted, Congress nullified federal court jurisdiction to hear any challenge to a military commission case, including claims that the procedures are illegal. That provision, it said, was not at issue before the Supreme Court in Boumediene. That decision, “by its terms, only applies to claims of detention,” and a constitutional right to challenge only detention.
Even if Judge Robertson did have jurisdiction, the brief said, it would not be appropriate to intrude on the military trial process. “There will be ample opportunity for an Article II [civilian] court to review petitioner’s legal challenge should he be convicted, at the conclusion of the military commission proceedings.” The only question at issue, it said, is when such a challenge may be made “and Congress has resolved that in favor of post-judgment review.”
Turning to Hamdan’s constitutional claims, the government brief rejected each of them as without merit. He “is not protected by the constitutional provisions he cites and, even if he were, his claims that they are violated are meritless.”
The government made these points, in summary, in arguing against the individual constitutional claims:
** The claim that going forward with the trial before he could challenge it in civilian court would be a violation of the Suspension of the Writ Clause lacks merit because, it said, he has been found to be an illegal enemy combatant by the military commission, and that was an adequate substitute for civilian court habeas review.
** There is no violation of the Ex Post Facto Clause, it said, because the charges “reflect long-standing law of war violations tha tCongress has codified under the Law of Nations Clause.”
** The Military Commissions Act, it asserted, is not “an illegal bill of attainder” because Congress did not pass a law explicitly convicting anyone of a crime without a trial.
** The Due Process Clause challenge, it said, “is both premature and meritless.”
** The claim of a violation of equal protection under the Due Process Clause “lacks merit because it is well established there is nothing improper with the national government treating aliens differently from the citizenry, particularly in an armed conflict with a foreign enemy, so long as there is a rational basis for doing so, which there plainly is in these circumstances.”
The government invoked its own constitutional claims against Hamdan’s pre-trial challenge, contending that it violates separation-of-powers principles because it would “hamper the government’s war efforts” and contradict Congress’ choice to end federal court power to intrude into the military commission process.
Seeking to bolster its argument, it noted that the D.C. Circuit Court on June 20 had refused to delay another military commission trial, that of Canadian Omar Khadr.
