Government views sought on Hamdan appeal
on Jun 13, 2007 at 4:15 pm
The D.C. Circuit Court on Wednesday asked the Justice Department to offer its views on whether the full Circuit bench should decide a new appeal by Salim Ahmed Hamdan, who faces potential war crimes charges at Guantanamo Bay, Cuba. In a brief order, the Circuit Court asked the Department to respond by June 28 to the request of Hamdan’s attorneys that his case be heard initially by the Court sitting en banc. The full Court consists of ten actrve judges. Under Circuit rules, a petition for rehearing en banc ordinarily will not be granted unless the Court asks for a response.
If en banc review is granted, Hamdan’s counsel will ask the Court to keep his case alive but, if necessary to do so, to overrule a Feb. 20 decision by a three-judge Circuit Court panel ordering dismissal of Guantanamo prisoners’ habeas cases. In the cases decided Feb. 20 (the lead case was Boumediene v. Bush, Circuit docket 05-5062), the three-judge panel split 2-1 in ruling that Congress had eliminated habeas rights for Guantanamo captives.
That ruling, however, came in cases in which the detainees were not facing war crimes charges before a “military commission.” Hamdan is likely to face such charges when the commission process is put back into operation after a temporary interruption. He argues that the panel decision Feb. 20 did not involve a situation like his, so he insists that his habeas rights remain in effect.
Still, his attorneys have conceded that the Circuit Court panel used broad language in the Boumediene decision, so it may be futile to ask another panel to deviate from that in Hamdan’s case. Thus, the request for initial en banc review, since the en banc Court would not be bound by the panel decision. If en banc review is not granted, Hamdan’s counsel has asked the Circuit Court to rule summarily on his appeal, without further briefing, in order to clear the way for a quick new appeal to the Supreme Court.
