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Hamdan: Case should go on

Lawyers for Yemeni national Salim Ahmed Hamdan urged the D.C. Circuit Court on Monday to go ahead and rule on his challenge to his conviction by a U.S. military commission at Guantanamo Bay, arguing that Supreme Court precedents leave no doubt that his case remains a live controversy.   In a post-argument brief (it can be found here), the attorneys responded to a court order to supply views on whether the case should be dismissed without a ruling.

A three-judge panel of the Circuit Court held a hearing May 3 to review Hamdan’s August 2008 conviction at Guantanamo, and showed some skepticism about the one charge on which he was found guilty: providing “material support” to a terrorist organization.  If, however, the panel concludes that his case is now moot, because he has served his sentence and has left the country, no court would have jurisdiction to decide the case.  That is why the panel told lawyers on each side to file new briefs on the mootness question.

The key factor that will shape the court’s answer to that question is whether Hamdan faces any consequences flowing from his conviction.   At stake is the meaning, and application to Guantanamo trials, of a 1968 Supreme Court ruling in the case of Sibron v. New York.  In that decision, the Justices ruled that, when a convicted individual pursues an appeal of a guilty verdict, courts are to “presume” that the individual will experience “collateral consequences” so that the controversy would remain a live one for the courts to decide. (The Constitution’s Article III allows federal courts only to decide live cases.)

In their new brief, Hamdan’s counsel argued that the Supreme Court has never deviated from the Sibron precedent and they argued that it is clear that Hamdan will, in fact, feel the ongoing effects of his conviction.   He is now barred from ever returning to the U.S., by a federal law, the brief noted.

Moreover, they said, he lives in his home country of Yemen now, and the U.S. “is actively involved in security-related operations” in that country, so “no one can predict the future course of events in that politically unstable region.”   It is conceivable that he could again be detained by U.S. forces, the brief suggested.

“It matters not whether these prospects are likely, not likely, remote, speculative, or hypothetical,” his lawyers contended. “Under established case law, they demonstrate the mere possibility of adverse collateral consequences sufficient to render the case a live controversy under the Sibron rule.”

The Justice Department lawyer has previously told the Circuit Court panel that the government does not contest Hamdan’s argument that his case is not moot, and is expected to say that again when it files its own post-argument brief, now due on June 24.  Ten days after that, Hamdan’s counsel is to file a reply brief.  The panel could rule any time after that.

Even though the government has conceded that the case remains alive, that and Hamdan’s argument are not sufficient to settle the mootness issue: since it is a jurisdictional question, the Circuit Court itself must rule on it.

Recommended Citation: Lyle Denniston, Hamdan: Case should go on, SCOTUSblog (Jun. 4, 2012, 10:55 PM),