Graham-Levin dispute opens in Court
on Jan 6, 2006 at 1:23 pm
(UPDATE: Two U.S. District Court judges in Washington who had recently ordered briefing in pending cases on this controversy vacated those orders on Friday. Judges Reggie B. Walton and John D. Bates acted in response to the D.C. Circuit Court’s order calling for briefs on the issue — a move that would probably produce a ruling binding on the District Courts in cases pending there.
(The blog thanks a platoon of lawyers and professors who supplied copies of court orders and nearly two dozen amici filings.)
The deepening controversy over the authority of the federal courts — including the Supreme Court — to decide the already-pending cases on the rights of foreign nationals detained as terorism suspects at Guantanamo Bay, Cuba, reached the Supreme Court on Friday.
In one of a series of friend-of-court briefs filed in the case of Hamdan v. Rumsfeld (05-184), five law professors told the Court that the controversy threatens “the constitutional guarantees of separation of powers.” If Congress has scuttled Hamdan’s case in the process, the professors argued, that would erode “an essential function of the Supreme Court and of due process of law.”
The controversy turns on the meaning the courts will give to the so-called “Graham-Levin amendment,” a provision passed by Congress last month to strictly limit the legal rights of Guantanamo prisoners. President Bush and his legal aides have interpreted that measure, the Detainee Treatment Act of 2005, as scuttling hundreds of existing detainee cases. So far, the Administration has moved in the D.C. Circuit Court and in the U.S. District Court in Washington to start the process of challenging jurisdiction. It has not yet done so in the Supreme Court, but very likely will do so.
Anticipating that the issue could affect Hamdan’s case, too, the law professors filed an amicus brief mainly devoted to arguing that the Court should go ahead with its review of Hamdan’s appeal challenging the “military commission” that is set to try him on war crimes charges. The professors are Norman Dorsen and Burt Neuborne of New York University, Frank Michelman and David Shapiro of Harvard, and Judith Resnik of Yale.
“This is the first case since Ex parte McCardle [1868] to involve a possible attempt by Congress to abolish retroactively the Supreme Court’s jurisdiction over a pending appeal,” the brief says. It adds that “any such attempt would raise questions that go to the heart of our constitutionali structure, and would in this case imperil an essential function of the Supreme Court.”
A similar argument was made in a number of other briefs filed todoay, including a brief on behalf of more than 300 other Guantanamo detainees.
The professors said that, since the new law on court jurisdiction does not refer directly to the Supreme Court’s jurisdiction to hear appeals, “the Court ought not to construe it as an attempt — the first in almost 150 years — to eliminate this Court’s appellate jurisdiction over a pending appeal.”
They noted that the Court had agreed in November to hear Hamdan’s appeal and that a U.S. citizen, Jose Padilla, being held in this country as an “enemy combatant,” had filed an appeal in the Supreme Court. As a result, the brief said, “this Court appeared poised to review the constitutionality of the Executive’s assertion of power to detain, interrogate and prosecute accused terrorists outside the usual course of military or civilian justice…Faced with the prospect of imminent Suprme Court review, the Executive branch appears to have engaged in a concerted effort to block this Court from reviewing the Padilla and Hamdan appeals.”
The brief then recited the history of the government’s changing position on Padilla, and its argument that that case is now moot. And, it says, the Administration turned to Congress, seeking to elilminate court authority to decide detainee cases. The professors then go on to lay out their argument why the “Graham-Levin amendment” should not be read to scuttle pending cases. This appears to be the first time that this argument has been laid out in full in a court filing in any detainee case.
But, if the Administration view of the amendment prevails, the professors said, and the Hamdan appeal is dismissed for lack of jurisdiction, “the keys to the courthouse will be placed in the exclusive control of the Executive.”
But that view of the amendment, they contended, makes the provision unconstitutional. Article III, the constitutional clauses on suspension of habeas, equal protection, due process and bills of attainder, the brief argued, “deprive Congress of poweer to oust the Supreme Court of appellate jurisdiction…, especially where, as here, Congress has also purported to strip the lower federal courts of jurisdiction to review the challenged activity.”
“No case,” according to the brief, “has ever countenanced an effort to strip both this Court and the lower federal courts of original and appellate jurisdiction to pass on the constitutionality of Executive action in derogation of personal liberty. To do so would place the very structure of the Constitution at risk by attacking an ‘essential function’ of the Supreme Court and the Article III judiciary.”
