Lawyers for a Yemeni national facing war crimes charges before a U.S. military commission at Guantanamo Bay have asked the D.C. Circuit Court to delay that trial until after the Supreme Court rules on the legal rights of detainees. In a motion for a stay filed Wednesday, counsel for Salim Ahmed Hamdan argued that the coming ruling by the Justices will affect directly his claim that it would be unconstitutional for a commission to try him. “The most basic questions concerning Mr. Hamdan’s commission remain unanswered — including whether the Constitution of the United States imposes any constraint whatsoever on these trials,” his lawyers contended. The motion can be downloaded here.
Hamdan now has an appeal pending in the Circuit Court challenging the constitutionality of the military commission system and his coming trial (Hamdan v. Gates, Circuit docket 07-5042). The Circuit Court, however, put that case on hold last July until after the Supreme Court had decided the pending cases on detainees’ rights — the cases of Boumediene v. Bush, Supreme Court docket 06-1195, and Al Odah v. U.S., 06-1196, which the Justices heard on Dec. 5. In those cases, Hamdan’s stay motion argued, the Supreme Court’s ruling in those cases “will affect virtually all legal matters related to the detainees.” It noted that, in response to the Justices’ grant of review in those cases, the Circuit Court itself and several District Court judges already “have frozen action to preserve the status quo” in pending detainee cases.
If Hamdan has to go to trial now, “before the Supreme Court’s resolution of whether he has any constitutional rights,” his lawyers argued, he would be “irreparably harmed. His right to pre-trial review and to not be tried by a tribunal that lacks the requisite independence and procedural safeguards will be forever lost.” Moreover, it he has to go to trial, he will be forced either to disclose his full legal defense to military prosecutors, or else forego mounting any defense at all; both would be to his considerable disadvantage now or in future proceedings, the motion said.
His attorneys noted that the military commission that is preparing to conduct his trial had ruled that it does have jurisdiction to proceed, and that that ruling was based in part upon the Circuit Court’s own ruling in the Boumediee/Al Odah cases — the very ruling now under review in the Supreme Court. A “short stay” of the military trial until after those cases are finally resolved, his motion contended, would not prejudice the government in any prosecution that later went forward. It also noted that the government itself has sought delays in other detainee cases in the Circuit Court, pending the Supreme Court’s coming decision. And it pointed out that the Justice Department, in opposing an earlier Supreme Court appeal by Hamdan, had argued that his case raised the same issues that are at stake in the Boumediene/Al Odah cases.
CLICK HERE FOR FULL VERSION OF THIS STORY