New battle over the Great Writ

By Lyle Denniston
on Feb 27, 2007 at 8:41 pm

Attempting to draw the Supreme Court back into the legal side of the “war on terror,” two men being held captive by the U.S. military on Tuesday urged the Justices to restore the right to challenge their detention and criminal prosecution. Salim Ahmed Hamdan, a Yemeni national, and Omar Khadr, a Canadian national, filed a combined appeal of two lower court rulings concluding that the detainees have lost that right. The petition can be found here.

“As the War on Terror enters its sixth year,” the appeal argues, “this Court’s guidance is needed on whether the judiciary can be summarily removed from its traditional role in safeguarding liberty and preserving the balance of power.” The lower courts, it adds, have created “a legal black hole (at the Guantanamo Bay, Cuba, military prison camp) exempt from the Great Writ.”

Earlier Tuesday, lawyers for these two detainees asked the Court to expedite this case so that it could be decided in the current Term. It is late enough in the Term that the case otherwise would not be heard until the Fall. That motion to expedite is discussed in this post.

The new case is Hamdan v. Gates/Khadr v. Bush, not yet assigned a docket number. The two men do not directly contest the government’s power to take them prisoner or to put them on trial for alleged war crimes; rather, at this point they are seeking the chance to go forward with such challenges in lower courts.

They claim that, if the writ of habeas corpus is not available to them, those ultimate war powers questions may never be answered for foreign nationals taken prisoner overseas and held by the U.S. military at Guantanamo Bay. They argue that they would be left with only a limited chance to have the D.C. Circuit Court review the outcomes of military detention hearings or military “commission” trials on war crimes charges, with no review of the facts behind detention or of prison conditions.

“The scope of habeas jurisdiction is a matter of profound national and international importance,” the appeal says. “The writ’s importance is at its apogee when it is the only means available to stop an illegal trial where a man’s life is at stake.” Moreover, they contend that “access to the federal courts via habeas is determinative of a further essential question: whether the political branches can circumvent the Constitution and decisions of this Court to institute criminal prosecutions before military tribunals, summary proceedings regarded with the utmost suspicion by our Founders.”

As in a wide array of other “war on terrorism” cases, including those that previously reached the Supreme Court, a central issue the Court would have to confront in this new case will be the scope and continued force of a 1950 ruling – Johnson v. Eisentrager – closing U.S. courts to German citizens convicted of war crimes and held overseas. The Eisentrager ruling has been a mainstay of Bush Administration legal arguments in many terrorism cases.

Both men raise this as their initial question: “Do individuals detained as alleged enemy combatants at the Guantanamo Bay Naval Base in Cuba have access to habeas corpus under the Constitution or by statute?” A federal District Court judge in Hamdan’s case said no; the same answer came in Khadr’s case from the D.C. Circuit Court. That is the same question other detainees are expected to raise in separate petitions due to be filed at the Court by next Monday.

Because Hamdan and Khadr face war crimes charges and trials before a military “commission,” while most other detainees in the Cuba camp do not, their petition also poses these two added questions:
** “Is the Military Commissions Act of 2006, which purports to strip federal courts of habeas jurisdiction with respect to Guantanamo Bay detainees, unconstitutional because it violates separation of powers, the Bill of Attainder Clause, and Equal Protection guarantees?”
**”Even if the MCA validly withdraws habeas jurisdiction over petitions filed by individuals detained as alleged enemy combatants, are the petitioners in this case who are facing criminal prosecution before military tribunals – and sentences of life imprisonment and death – nevertheless protected by fundamental rights secured by the Constitution, including the right to challenge the jurisdiction of such a tribunal via the writ of habeas corpus?”

The other detainees’ cases will present questions about the validity of the 2006 court-stripping law, but their constitutional attack is expected to be based upon an alleged invalid suspension of the habeas writ – the only constitutional issue decided by the D.C. Circuit in their cases.

The Hamdan/Khadr petition suggests that the Court hear this case along with the other detainees’ cases, saying their appeal is a “necessary counterpart” of those. “Each case challenges in some form the constitutionality of the MCA and the scope of constitutional protections at Guantanamo.”

But, the petition goes on, the other cases do not provide as full a challenge to the loss of habeas rights, since the other detainees are focusing on detention review tribunals, not war crimes trials. The Canadian, Omar Khadr, actually faces a potential death sentence, the appeal says; the Pentagon plans to file formal charges of murder against him, based on an allegation that he killed an American soldier in Afghanistan in July 2002 by throwing a hand grenade at U.S. forces.

Both Khadr and Hamdan are charged with taking part in terrorism conspiracy and with providing material support to terrorist forces. Only one other Guantanamo detainee so far faces war crimes charges – Australian David Hicks. He is among other detainees that will be seeking Supreme Court review separately.

The petition also argues that Hamdan and Khadr (and Hicks, presumably) face a trial that would allow testimony obtained through coercion, a trial on offenses that were defined after the underlying acts occurred, and a trial without a right to rely upon international treaties as part of their defense. “Everything about the trials, including the most basic question of all – does the Constitution apply to them – are in doubt,” the appeal asserts.

The Hamdan part of the petition is a plea to have the Court take on his case without waiting for the D.C. Circuit to rule on an appeal he has pending there to challenge a U.S. District Court ruling last Dec. 13. Khadr is an appeal from the D.C. Circuit’s ruling on Feb. 20.