Hamdan seeks new briefs
on Jan 11, 2006 at 8:04 pm
Attorneys for Salim Ahmed Hamdan, a Yemeni national who is challenging the “military commission” that is scheduled to try him on war crimes charges, urged the Supreme Court on Wednesday to call for additional legal briefs on the impact on his case of the new Detainee Treatment Act of 2005.
That question already has been raised in Hamdan’s brief on the merits, filed last week, and by numerous amici filings in support of his appeal. But the Bush Administration has yet to advise the Court of its reaction to the new law, although President Bush has argued publicly and the Justice Department has argued in court filings that the Act wipes out existing court challenges by any foreign national — like Hamdan — now being held at the U.S. military prison at Guantanamo Bay, Cuba.
Hamdan’s lawyers said in a footnote to their new briefing motion that the U.S. Solicitor General had advised them that the government “does not yet know how it intends to proceed in this Court” on the new Act’s effect, if any, on the Hamdan proceedings. The government last week had filed a notice in District Court, where Hamdan’s case originated, to dismiss that case at that level, but it has since withdrawn that specific notice.
The Supreme Court granted review of Hamdan’s appeal on Nov. 7, but the case has not yet been scheduled for oral argument. The government’s brief on the merits is due Feb. 10. At this Friday’s Conference, according to the Court’s docket, the Justices are to consider a separate plea by Hamdan seeking habeas relief directly from the Court — a move designed to assure that his case goes forward in the Court, whatever the meaning given to the new Detainee Treatment Act.
Hamdan’s new filing Wednesday suggested that additional briefing is necessary on the Act’s effect, because that raises issues of the Court’s jurisdiction to proceed with his case. The motion suggested there were at least three aspects of the new Act’s potential effect that need to be explored:
First, “whether Congress intended to take the extraordianry step of attempting to strip this Court of its jurisdiction to consider a pending case” — an issue on which Hamdan and his amici argue that Congress had no such intent.
Second, if the Congress did intend to take away the Court’s authority to decide his case, whether that would be unconstitutional under a variety of constitutional provisions, including the clause limiting suspension of the writ of habeas corpus.
And, third, whether, in any event, the Court retains the power to decide Hamdan’s case through an extraordinary writ of the kind he is now seeking as an alternative to preserve his appeal.
The Court very likely will solicit the Solicitor General’s response to the motion, if one is not forthcoming.
Meanwhile, the D.C. Circuit Court has called for similar briefs on the question of its jurisdiction, in view of the new Detainnee Act, to decide a series of pending cases on the legal rights of foreign nationals at Guantanamo Bay who are not facing war crimes trials but continue to be detained. On Wednesday, however, attorneys for the detainees in those cases asked the Circuit Court to defer the filing of those added briefs, pending the Supreme Court’s consideration of that issue in the Hamdan case. The attorneys argued that, since the issue does affect jurisdiction, “the Supreme Court is highly likely to consider its bearing on the case.” That, they added, is likely to control the effect of the new Act on the detainees’ pending cases.
Under the Circuit Court’s briefing order, both sides were to file new briefs simultaneously on Jan. 18. The new filing suggested that, if the Circuit Court does not defer those briefs’ filing, it should approve a briefing schedule with each side filing in sequence, rather than all at once. “Responsive briefing would assist this Court in its consideration of the effect” of the Act on these appeals, the attorneys told that Court.
The Justice Department, they added, opposes a deferral of the new briefing, but does not object to a different, responsive pleading schedule.
