Move to shore up Hamdan appeal
on Apr 11, 2007 at 9:55 am
UPDATE Wednesday 9:50 a.m. The Supreme Court plans to consider the Hamdan appeal at its private Conference on Friday, April 27, according to the Court’s electronic docket.
Attorneys for two Guantanamo Bay detainees who face war crimes trials before “military commissions” urged the Supreme Court on Tuesday to see significant differences between their cases and the other detainees’ appeals that the Court refused on April 2 to hear. Seeking to bolster the chances for review now, not later, attorneys for Sallim Ahmed Hamdan and Omar Khadr said the rights these two claim will be impaired if they have to wait for actual trials to be over before they can mount an appeal. “The right [they] seek to vindicate is the right not to be tried at all by an unconstitutional military commission, a right that obviously cannot be vindicated through even the best intentioned” review after the fact. The reply brief can be found here
It seems likely that Hamdan and Khadr already have three votes on the Court in favor of review — those of Justices Stephen G. Breyer, Ruth Bader Ginsburg and David H. Souter, who voted last week to hear the other detainees’ cases but could not persuade their colleagues to do so. That puts the focus in the new appeal on Justices Anthony M. Kennedy and John Paul Stevens, who wrote separately last week to suggest that the Court should hold off until after the other detainees sought to test their “available remedies” in lower courts first. It takes only four votes to grant review, but it may be necessary for five Justices to be interested in review at this stage before four would commit to it and risk a loss on the merits.
The reply brief picks up on a phrase in the Stevens-Kennedy statement to help make their argument for review before any commission trial is held. Stevens and Kennedy said that the Court might get involved in detainees’ cases if the captives suffered “some other and ongoing injury” if the Court did not step in. That injury is already present for Hamdan and Khadr, their lawyers contended. “Petitioners are irreparably harmed by having to defend themselves in trials where they are kept ignorant as to whether or not the Constitution protects them and governs the procedures by which their prosecutions are allowed to proceed.” At commission trials, the brief added, the two face a tribunal “with the power to impose a sentence of life imprisonment or even death.”
Borrowing further from Stevens and Kennedy, the brief says that the two detainees’ legal position will be “prejudice[d]” if they have to go to trial now. They argued that being forced to reveal their defense and trial strategy to the prosecution would harm their chances of getting a fair trial on the charges they face.
Making a non-legal argument, the reply said that “the reputation of the United States is on the line in these novel and untested trials.” They noted that the recent controversial guilty plea of a detainee, Australian David Hicks, “has cast further doubt on the ability of these commissions to prosecute cases fairly.” Moreover, the brief contended, the trials are due to unfold at Guantanamo Bay — “a place that is, according to the [D.C. Circuit Court], exempt from our most deeply-held constitutional guarantees.” (The Circuit Court, in its Feb. 20 decision barring detainees’ habeas challenges, ruled that Guantanamo prisoners have no constitutional rights to assert.)
If the trials go forward in what it now “a legal vacuum,” the brief said, “the process will ultimately cast doubt on this nation’s judicial system and our hallowed traditions of fairness in the eyes of the world.”
The detainees’ lawyers also contend that the court review process Congress has set up for detainees, as an alternative to broader court review of habeas claims, is not an adequate substitute. Such a review would follow conviction by a military commission. The Circuit Court, they said, “has already squarely held that detainees such as Hamdan and Khadr enjoy no constitutional rights that could be violated.”
The Supreme Court, the brief concluded, should grant review of the constitutional claims at stake “instead of forcing further review in a court that has already effectively rejected them”
With the reply brief now on file, the Court could schedule the Hamdan/Khadr joint appeal for the Justices’ Conference at any time. It has not yet been scheduled, however. (NOTE: See update at the head of this post.)
The joint petition is Hamdan v. Gates and Khadr v. Bush (06-1169). Hamdan’s appeal challenges the D.C. District Court ruling that ended his case on jurisdictional grounds, while Khadr’s appeal challenges the Circuit Court’s Feb. 20 ruling dismissed detainees’ habeas challenges.
