Move to scuttle Hamdan, Al Odah cases?
on Jan 2, 2006 at 11:59 am
The Bush Administration appears to be preparing to try to scuttle the two most significant pending cases on the legal rights of foreign nationals now being held at the terrorism prison at Guantanamo Bay, Cuba. One of those cases has been granted review by the Supreme Court, the other is awaiting a decision in the D.C. Circuit Court.
President Bush himself signaled this strategy of challenge in a statement last Friday that got little mention in the media, during the holiday lull. His remarks, made at his ranch in Crawford, Texas, came as he signed into law a new defense authorization bill, H.R. 2863, that contains the “Detainee Treatment Act of 2005” as part of its Title X, “Matters Relating to Detainees.” (The full text of the President’s signing statement can be found here. The discussion of the detainee issue is in the eighth paragraph, which begins “The executive branch shall construe Title X…”)
UPDATE: The White House, it turns out, actually issued two statements by the President on this new legislation. A markedly different version, while shorter, was more explicit on the President’s claim that Congress had acted to wipe out the detainees’ cases. In this other version, Bush said flatly: “I also appreciate the legislation’s elimination of the hundreds of claims brought by terrorists at Guantanamo Bay, Cuba, that challenge many different aspects of their detention and that are now pending in our courts.” FURTHER UPDATE: The White House press office on Tuesday said that the longer version is the signing statement that is being transmitted to Congress with notice of the President’s signature, while the shorter statement represents the President’s statement to the media. Thus, both have status as presidential papers. Ths shorter version may be found here. Both statements are displayed among news releases on the White House’s website.
This challenge will clearly be aimed at Hamdan v. Rumsfeld (05-184), an appeal that the Supreme Court agreed on Nov. 7 to hear and decide in the current Term. That case involves Salim Ahmed Hamdan, a Yemeni national who is facing war crimes charges before a “military commission” at Guantanamo. The case challenges the constitutionality of those special commissions. Hamdan’s brief is due in the Court this Friday.
The other cases being targeted are Al Odah, et al., v. U.S., et al., that the D.C. Circuit heard on Sept. 8, and are awaiting a ruling by a three-judge panel. (The lead case is docketed in the Circuit Court as 05-5064). This involves a series of habeas challenges by Guantanamo prisoners to their capture and prolonged detention by the U.S. military.
The Administration also will be seeking to head off any future habeas challenges by any other detainees who are foreign nationals.
At this point, it is unclear whether the Administration will initiate on its own the planned new challenge to the pending cases, or whether it will await a possible invitation by the courts for further briefing on the fate of those cases. Given how energetically the Administration has pursued its legal aims during the war on terrorism, it would be no surprise if it moved quickly to assert its new move to keep the courts from reviewing its wartime actions.
Conceivably, defense lawyers could initiate the issue, too, in an attempt to get their views before the courts first. These lawyers, equally energetic in defending their clients, are expected to vigorously oppose the Administration’s strategy, and to contest its reading of the new legislation. In addition, if the new law is construed as the Administration does, the defense teams are expected to contend that it goes beyond Congress’ constitutional powers.
Because the dispute here turns on the courts’ jurisdiction, both the courts themselves and the attorneys involved have an obligation to address it before any move is made toward a final decision on the merits.
These new developments are the outgrowth of the passage by Congress of what has been called “the Graham-Levin amendment” to H.R. 2863. That is the potentially court-stripping provision that President Bush signed into law on Dec. 30, along with the remainder of H.R. 2863.
The President said that he and his legal advisers “shall construe section 1005 [of the new Detainee Act] to preclude the Federal courts from exercising subject matter jurisdiction over any existing or future action, including applications for writs of habeas corpus…”
Clearly acting upon interpretations made by White House and Justice Department lawyers, Bush cited three bases for the court-stripping interpretation: first, the “constitutional authority of the President” and the constitutional limits on the courts’ power; second, the Supreme Court’s April 24, 2001, decision in Alexander, et al., v. Sandoval, strictly limiting individuals’ right to file court cases to protect their rights unless Congress explicitly creates such a right; and, third, the language of “the Graham-Levin amendment” as finally enacted.
The sweeping claims of the President’s power “to supervise the unitary executive branch” and his power as Commander in Chief are familiar in war-on-terrorism cases. The interpretation of the impact of the amendment on pending cases was expected, in view of somewhat cloudy language written by Congress about the effective date of the new law’s detainee provisions. That uncertainty also shows in legislative debates on the impact of the new amendment.
What is novel about the President’s statement is the reliance upon the Sandoval decision. Even though the Supreme Court in its first detainee decisions, in 2004, ruled that detainees do have a right to file habeas challenges, the Administration’s lawyers appear to be preparing to argue that the new detainee act overrides that decision, because it fails to create any “private right of action” for detainees.
My blogging colleague, Marty Lederman, has an excellent post on the Balkinization blog on the President’s signing statement, including discussion of the government strategy on Congress’ attempt to limit torture of detainees. His post, here, also includes links to the final language of the detainee and torture provisions.
When the fate of the Hamdan case in the Supreme Court arises, as it will sooner or later this Term, Chief Justice John G. Roberts, Jr., presumably will not join in acting on it. He has taken himself out of any role in that case, because he was a judge on the D.C. Circuit case that decided the case below. Thus, only eight Justices will deal with the question of jurisdiction.
The full Court, however, is expected to act on the other move by the Bush Administration to avoid another ruling on a key war-on-terrorism case: the case of Jose Padilla, a U.S. citizen designated an “enemy combatant” but recently charged in civilian court with terrorism-related crimes. The Court has not yet granted or denied Padilla’s petition (Padilla v. Hanft, 05-533), nor has it acted yet on the dispute that has arisen over whether the case is now moot in view of the criminal charges. The mootness issue is related to a second controversy, over whether the courts will now approve Padilla’s transfer from military custody to civilian custody. The Court may act promptly on the transfer question. It is scheduled to consider Padilla’s petition for review on Jan. 13, but conceivably that could be moved up.
