In what is probably the last filing as the D.C. Circuit Court prepares to decide the legal fate of Guantanamo Bay detainees, the Justice Department on Tuesday mounted a new argument in response to a new thrust by the prisoners’ lawyers. The Department argued to the three-judge panel that the 9/11 Resolution passed by Congress soon after the 2001 terrorist attacks in no way grants the detainees any rights under the Geneva Convention. The reply brief can be found here.
The Circuit Court is weighing two packets of cases filed by detainees at Guantanamo who have not been charged with any crime. It is considering whether they have any legal rights to assert against their detention, what those rights — if any — are, and in what court they may press them.
That Court has held two hearings and had three rounds of briefing in those cases. It asked the two sides for briefs in the third round on the impact of the Supreme Court’s June 29 decision in Hamdan v. Rumsfeld — a case that dealt with the procedures for trying detainees for war crimes before U.S. “military commissions.” The Hamdan decision did not deal directly with issues involving detainees not facing trials.
The latest round of briefs largely contained now-familiar legal arguments. But they also feature a new change that had not figured in these cases before: the Geneva Convention question.
In Hamdan, the Supreme Court had concluded that Common Article 3 of the Convention did impose limits on presidential power to create “military commissions.” It did so, the Justices said, as part of the “law of war” binding on the President.
One group of detainees, in their most recent brief on Aug. 8, found a parallel for the detaineres not facing war crimes charges. It found that the 9/11 Resolution, passed by Congress soon after the terrorist attacks, embraced a law-of-war limitation on presidential handling of war-on-terrorism detainees. The Resolution is formally named the Authorization for Use of Military Force, or AUMF. (This was the brief filed in the Al Odah group of cases; an earlier post includes links to that brief and another by a separate group of detainees.)
That argument began with the Supreme Court’s main opinion in another war-on-terrorism case, Hamdi v. Rumsfeld in 2004, dealing with presidential authority to order the capture of suspects in overseas battle zones. The detainees’ lawyers found in that opinion the link between presidential war powers and the 9/11 Resolution. Since that was the “legislative source” of Executive power to detain terrorism suspects, that brief said, it was linked to the War Powers Resolution of 1973, which embraces existing treaties. Thus, it concluded, the Hamdi opinion “made clear that the AUMF incorporates the law-of-war constraints found in the Geneva Convention.” And then Hamdan made clear that prisoners could go to court to enforce Convention rights, completing the argument.
The Justice Departrment brief on Tuesday countered by saying that reasoning was “absurd.” AUMF, it said, contains no limitations on presidential power under the Convention. The Resolution endorsed the President’s power to “take whatever actions were necessary” to respond to the 9/11 attacks. “The notion that the AUMF, therefore, was intended to provide enemy combatants with rights, or a means to enforce any rights, is therefore absurd.”
But, it added, even if the AUMF did include restrictions under the Convention, it “provides no means for judicially enforcing those restrictions.”
And, in a final thrust, the Department contended that the AUMF argument by the detainees has no connection to the Hamdan decision, “but simply interjects a new (and meritless) argument at a belated stage in these proceedings.”
The Circuit Court has given no indication that it would hold a hearing on the Hamdan issue, or proceed to a decision on all of the issues before it.
Meanwhile, the Hamdan case itself moved another step in the Circuit Court, where it has returned in the wake of the Supreme Court decision. In an order issued last Friday, the panel that decided the case at the Circuit Court earlier ordered both sides to file “motions to govern further proceedings.” Those motions are due by Aug. 30. (The two remaining members of that panel are Circuit Judge A. Raymond Randolph and Senior Circuit Judge Stephen F. Williams. The third member of that panel is now the Chief Justice, John G. Roberts, Jr. He did not take part in the Hamdan ruling because of his earlier participation.)
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