Military commissions in doubt? Part I
on Sep 16, 2005 at 5:32 pm
(A constitutional challenge to the military commissions set up by President Bush to conduct war crimes trials of terrorism suspects is pending at the Supreme Court, and appears likely to be acted upon by the Justices in late September or at the opening of the new Term on Oct. 3. Even before the Court reaches the case, however, the status of the commissions remains in doubt because of lingering issues in the D.C. Circuit. This is one of two posts on those developments. The other post appears just above.)
Civilian and military lawyers for a Yemeni national facing trial before a special military commission are awaiting word from the D.C. Circuit on their request to delay any actual commission trials until after the Supreme Court acts on his appeal in Hamdan v. Rumsfeld, et al. (docket 05-184). The case involves Salim Ahmed Hamdan, accused of terrorist acts, partly in his role as “the personal driver for Osama bin Laden and other high ranking Al Qaeda members and associates,” as the Justice Department puts it. The Bush Administration is resisting the delay request, arguing that the Supreme Court is likely to turn aside the appeal and that, in any event, the courts should not impose any further delay on the opening of commission trials.
The D.C. Circuit, in a ruling on July 15 (joined in by Circuit Judge John G. Roberts, Jr., now the nominee to be Chief Justice), upheld the constitutionality of the military commissions. It found that Congress, in the 9/11 Resolution, had authorized the President to set up such tribunals outside the regular civilian and military court systems. At that time, the Circuit Court withheld its mandate to allow time for rehearing en banc to be sought. The Court, however, said that any party could ask for “expedited issuance of the mandate.”
Three days after the ruling, the Pentagon said it was consulting with the Justice Department on whether to seek “immediate issuance of the mandate,” which, it noted, “would allow proceedings in the Hamdan case to resume immediately.” No such request was filed, however. And rehearing en banc was not sought.
The commission proceedings against Hamdan and others accused of violating “the laws or war” have been on hold since December 2004, following a District Court ruling that those tribunals as presently constituted were invalid. That was the ruling the Circuit Court overturned on July 15. The District Court’s injunction against a commission trial of Hamdi, however, remains in effect pending the Circuit’s mandate.
In their reaction on July 18, Pentagon officials in charge of the commissions said that they would “resume commission proceedings immediately…as soon as any necessary court orders are issued.” They specifically mentioned Hamdan’s trial.
On Aug. 11, Hamdan’s lawyers asked for the delay in issuing the Circuit mandate until after the Supreme Court had considered and acted on Hamdan’s challenge. His case, those attorneys argued in the motion for a stay, “presents legal issues of extraordinary national and international significance and contains questions of first impression on which Supreme Court guidance is necessary.”
Arguing that Hamdan is seeking to avoid altogether any commission trial, his lawyers said that “absent a stay, these military commissions…will move forward without the benefit and impirmatur of Supreme Court review.” A stay, they said, would give “credence and support to the perception here and abroad that all criminal proceedings conducted by the United States are subject to full judicial review and are governed by the rule of law.”
In the government reply Aug. 23, the Justice Department contended that Hamdan’s appeal “is unlikely to be granted by the Supreme Court because this is a criminal matter in an interlocutory posture, and because this [Circuit] Court’s judgment was based upon sound, established precedent and created no conflict warranting further review.” Delaying the mandate, it added, would lead “to further delay in military commisson proceedings that have already been delayed for months by the District Court’s injunction.”
Although the Pentagon had said that issuance of the mandate would lead to an immediate opening of such trials, the Department told the Circuit Court that that would not actually be true. A number of pre-trial motions are pending in Hamdan’s case, it said, and lifting of the District Court injunction would only lead to a ruling on those motions.
The Circuit Court has taken no action on the question of when its mandate will be issued. There has been no explanation of the delay. However, it seems likely that the delay was caused by another development in the case — a maneuver that seeks to undo at least a part the Circuit Court ruling. (That maneuver is discussed in a separate post, above.)
Meanwhile, all of the briefs are in at the Supreme Court in his case. That case has been moved along speedily. The most recent filing, Hamdan’s reply brief last Monday, was not the usual pro forma response of ten pages. Although it was limited in its argument to ten printed pages, the brief is accompanied by a highly unusual, 109-page appendix containing a raft of documents seeking to undermine the Justice Department’s main claim that the Supreme Court does not hear pre-trial appeals like this one, and supporting the claims of serious flaws in the commission setup. Hamdan’s appeal has attracted nine amici briefs.
