Government asks Court to dismiss Hamdan
on Jan 12, 2006 at 5:40 pm
The Bush Administration on Thursday asked the Supreme Court to throw out immediately the case of Salim Ahmed Hamdan, a challenge to the “military commissions” that President Bush set up to try foreign nationals on war crimes charges. The motion is available here. As expected, the motion urged the Court to dismiss his appeal for lack of jurisdiction or to order lower courts to dismiss his underlying habeas challenge. It relied upon its interpretation of the recently enacted Detainee Treatment Act of 2005.
(UPDATE: Sen. Carl Levin, Michigan Democrat who was one of the architects of the jurisdictional provisions in the Detainee Act, has issued a new press release to bolster his claim that Congress did not intend to scuttle existing detainee cases. The press release can be found here.)
The Act seeks to strip the courts of authority to decide challenges by individuals captured in the war on terrorism and now being held prisoner at the U.S. military prison at Guantanamo Bay, Cuba. In place of an existing right to pursue a habeas corpus plea, or to seek some other court relief, the new law sets up a far more limited review of final actions toward detainees by military authorities — such as final rulings that a detainee must continue to be held, or a final conviction by a war crimes “military commission.”
There is a highly disputed issue, however, over whether Congress intended to withdraw the jurisdiction of courts — including the Supreme Court — to decide pending cases filed by detainees. President Bush and his legal advisers have taken the position that Congress did intend to do just that, and so, they have argued, courts must put a stop to existing litigation — now pending at all three levels of the federal judiciary. The one case now pending at the Supreme Court is Hamdan v. Rumsfeld (04-184). (This dispute does not affect the pending Supreme Court case in which a U.S. citizen, Jose Padilla, is challenging his designation as an “enemy combatant” and his prolonged detention in a military jail — docket 05-533. The new Detainee Act only applies to captives at Guantanamo, and no U.S. citizen is detained there.)
A separate issue that has arisen is: if the new Act is read to mean what the Administration contends, whether Congress had the constitutional authority to scuttle existing cases.
Although Hamdan’s attorneys on Wednesday asked the Court to order the filing of new briefs on the question of its jurisdiction in the wake of the new law, the U.S. Solicitor General instead filed a lengthy argument Thursday to accompany its motion to dismiss. The brief, however, only addresses the first issue — whether Congress intended to wipe out existing cases. It does not discuss the second question, over Congress’ power to take such action.
“For more than a century,” the government filing said, “this Court has consistently recognized that statutes removing jurisdiction must be given immediate effect, including by this Court…Because the courts must have jurisdiction over a case or controversy throughout the litigation, the removal of jurisdiction results in immediate dismissal no matter what stage the litigation has reached.”
It has been 138 years since Congress last acted to force the dismissal of a case pending before the Supreme Court. The Court upheld that maneuver in Ex parte McCardle, in 1868. Quoting from that decision Thursday, the government said: “As the Court explained in McCardle: ‘Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause…Judicial duty is not less fitly performed by declining ungranted jurisdiction than in exercising firmly that which the Constitution and the laws confer.’ ”
Congress, the government brief goes on, “is presumed to be aware of that settled practice.” The Detainee Act, it argued, “in plain terms removes the Court’s jurisdiction to hear this action.”
The Court has not yet indicated how it will handle this deepening dispute over its authority to decide the Hamdan case. It granted review of that case on Nov. 7, and briefing is going forward; an oral argument date has not yet been set, but is likely in late March.
Besides the appeal on the merits of Hamdan’s challenge to the “military commission” process, the Court now has three other matters pending in this case: the new government motion to dismiss, the Hamdan team’s request for supplemental briefing on the jurisdictional issue, and Hamdan’s separate plea for an “extraordinary writ” that might keep the case alive even if his pending appeal were to be dismissed. That last item is scheduled to be considered by the Court at its private Conference on Friday.
It seems unlikely that the Court will consider the government motion to dismiss Friday, since the Court’s rules give the other side up to ten days to respond to any motion, unless the Court provides for a different time span.
The Solicitor General’s new argument, besides contending that the appeal itself must be dismissed, insisted that the new Act also bars the Court from considering the Hamdan case under any other authority. The Act, the government contended, has a catchall provision that eliminates any alternative basis for continuing with Hamdan’s present challenge. “Petitioner’s latest filing runs headlong into the same jurisdictional obstacles that remove this Court;s jurisdiction over the writ [of certiorari],” the government brief said.
The brief said that Hamdan is not without a means of challenging what ultimately happens to him, because he can seek to use the new procedures specified in the Detainee Act. Since a military panel has completed its ruling that he must remain detained, he could challenge that in the D.C. Circuit Court. He also could challenge in the D.C. Circuit a war crimes conviction, if that results from a “military commission” trial that awaits him.
