Hamdan case moved along
on Sep 9, 2005 at 6:48 pm
The Supreme Court is moving along at a faster-than-usual pace the constitutional challenge to the war crimes tribunals set up by President Bush to try war-on-terrorism suspects. Even though all filings in the case are not yet in, the Court has scheduled the case for consideration at the first Conference of the new Term, on Sept. 26, according to the Court’s docket. The case is Hamdan v. Rumsfeld, docket 05-184. (As of Friday, all cases that will come up at the Sept. 26 Conference have been designated.)
The Hamdan case involves the so-called “military commissions” that have been assigned the task of trying several foreign nationals now being held at the Navy prison camp at Guantanamo Bay, Cuba. The D.C. Circuit, in a ruling July 15 joined in by Circuit Judge John G. Roberts, Jr., upheld the President’s authority to bypass the court-martial system and civilian courts.
The government’s reply brief, urging the Court not to hear the appeal by Salim Ahmed Hamdan, was just filed on Wednesday. Ordinarily, a case would not be scheduled for Conference until after a reply brief has been filed. None has been filed as yet, although Hamdan’s attorneys, who have tried all along to move the case expeditiously, are expected to do so early next week. Those attorneys had tried, for example, to persuade the Supreme Court to hear the case before the D.C. Circuit ruled on it; that appeal was rejected by the Court on Jan. 18.
It is now apparent that Judge Roberts, even if he can anticipate Senate approval of his nomination to be Chief Justice, will not be at work at the Court until after the initial Conference has been held. But, in any event, he would not be expected to participate in any Court action on the Hamdan case, because he has vowed to take himself out of any case that reaches the Supreme Court if he had ruled on it while on the D.C. Circuit Court.
In the government’s opposition to Supreme Court review, Solicitor General Paul D. Clement argued that Hamdan’s trial before a commission should be allowed to run its course without prior Supreme Court review, and that, even if he were to be convicted, many of the specific challenges he raises in his petition for review may never arise.
More broadly, Clement contended that the Court should abstain from interfering with military proceedings. Citing the 1975 decision in Schlesinger v. Councilman, Clement wrote: “As the Court has explained, the need for protection against judicial interference with the ‘primary business of armies and navies to fight or be ready to fight wars’ ‘counsels strongly against the exercise of equity power’ to intervene in an ongoing court-martial….The concern for interference with military exigencies is only heightened where, as here, the military proceedings involve enforcement of the laws of war against an enemy force targeting civilians for mass deaths.”
Hamdan’s appeal is supported by various amici, including the military’s defense counsel in military commission cases. His appeal, that brief contended, “raises systemic issues that challenge the military commission system’s very existence. These issues affect every military commission case and will persist regardless of the outcome of [Hamdan’s] particular case.”
That brief adds: “The central constitutional defect in the system’s creation is that the Executive Branch’s unilateral prescription of the commission procedures and the substantive law the commissions apply violates the central principle of our federal government’s structure: the separation of powers.”
