Quick action on Hamdan urged
on Mar 29, 2007 at 3:22 pm
UPDATE 8 p.m. The government’s brief in opposition has now been filed. It can be found here. It urges the Court to deny the Hamdan/Khadr petition or, as an alternative, to hold it until the other detainee appeals have been resolved. The brief also argues that the joint petition of two detainees involving two different cases and two different lower courts may not be a proper filing under the Court’s rules, It suggests that the two detainees can file papers in the other detainee cases (if those are granted) to make any argument they would assert in their own appeal.
In addition, a group of present and former members of the British Parliament and the European Parliament filed an amicus brief, arguing that the new Military Commissions Act’s court-stripping provisions “fundamentally offend the rule of law and contravene treaties by which the United States is bound and upon which it is built.” That brief is here.
Lawyers for Salim Ahmed Hamdan, facing a war crimes trial before a U.S. military commission, have asked the Supreme Court to consider his appeal on his legal rights at its private Conference on Friday of this week. After the Court had refused on March 5 to expedite the appeal on its calendar, it had appeared that the case would not be ready for early consideration. Hamdan’s lawyers have now suggested reasons for taking it up promptly.
In a letter to the Court on Wednesday (found here), Hamdan’s counsel asked that the Court consider Hamdan’s appeal (Hamdan v. Gates, 06-1169) this week along with two other appeals by Guantanamo Bay detainees who are challenging their detention. Those cases, along with motions to expedite in each, will be before the Justices at the Friday Conference. (If any order emerges from the Conference on Friday, this blog will post it promptly.)
Hamdan’s appeal involves, in addition to him, another Guantanamo detainee who is facing a war crimes charge — Omar Khadr (his part of the petition is Khadr v. Bush). Hamdan’s appeal is from a District Court ruling dismissing his case under the new Military Commissions Act of 2006, and asks the Justices to hear the case without waiting for a D.C. Circuit ruling on an appeal that Hamdan also has pending there. Khadr’s part of the appeal asks the Court to review the D.C. Circuit’s Feb. 20 ruling using the MCA to dismiss all detainees’ pending habeas cases. That Circuit Court ruling is the same one that is at issue in the two other appeals — Boumediene v. Bush (06-1195) and Al Odah v. U.S. (06-1169).
In Wednesday’s letter, the Court was advised of the guilty plea on Monday of another detainee before a military commission — Australian David Hicks. His was the first military commission trial to open.
Hicks was one of the detainees involved in the other appeals the Court is ready to consider. The Justice Department had suggested to the Court, in opposing quick action on the Hamdan/Khadr appeal, that Hicks could raise issues about detainees facing military commission trials as part of the other appeals. The letter quotes the government’s earlier suggestion that, if the Court wished to consider how the Military Commissions Act applied to detainees facing commission trials, it could do so in the other cases.
With Hicks’ guilty plea this week, Hamdan’s lawyers said that would “preclude this Court’s consideration of the military commission matters in the context” of the other appeals. Only the Hamdan/Khadr petition, the letter added, “presents the Court with the opportunity to fully resolve at this time the challenges to the status of the Guantanamo detainees.”
The letter also argued that the Court should act soon on detainees facing war crimes trials because those are going forward under the D.C. Circuit ruling in February holding that detainees have no constitutional rights to pursue in federal court.
Finally, the letter notified the Court that the D.C. Circuit has put Hamdan’s pending appeal there on hold until the Supreme Court acts on his petition to the Supreme Court.
Meanwhile, the Justice Department was scheduled to file later Thursday its formal response to the Hamdan/Khadr petition. Earlier, it opposed expedited consideration of that petition, but it did not seek additional time to file its response, which was thus due today. (When the brief becomes available, it will be posted here.)
In another development, eight constitutional law professors and a former federal judge, William S. Sessions, filed an amicus brief urging the Court to hear the Hamdan case promptly (download here). “This case presents constitutional issues of exceptional importance and urgency warranting this Court’s review” without awaiting further action in the D.C.Circuit on Hamdan’s case. The brief contains a broad challenge to the Circuit Court ruling dismissing Guantanamo habeas cases under the Commissions Act, and to the Act itself. The Act’s court-stripping provision, the brief contends, violates the Constitution’s limit on suspending the writ of habeas corpus, and intrudes on the Supreme Court’s Article III powers.
