Government urges denial of Hamdan plea
on Jul 21, 2007 at 12:05 pm
The Justice Department on Friday urged the Supreme Court not to add any further cases or issues to its review of the legal rights of detainees held at Guantanamo Bay, Cuba. In fact, it asked the Court to promptly deny a new appeal by Salim Ahmed Hamdan, whose lawyers have asked the Justices to take his case along with the two cases already granted for next Term — Boumediene v. Bush (06-1195) and Al Odah v. U.S. (06-1196). A denial of review would shift the Hamdan case back to the D.C. Circuit Court, where it is also now pending.
On July 2, Hamdan’s counsel filed their new petition (Hamdan v. Gates, 07-15), with a request that the Court expedite its consideration. (The government agrees with expedited action on that petition, so it is conceivable the Court may act on it during its summer recess.) Hamdan’s lawyers also filed a request for permission to file late a petition for the Justices to reconsider their denial of review April 30 of a prior petition by Hamdan (in docket 06-1169). (Those filings are discussed and linked in this earlier post.)
The Solicitor General’s brief in opposition to the latest petition can be found here, and the opposition to reconsidering the denial of review in 06-1169 is here.
On Friday, Hamdan picked up, again, the support of a group of 411 British and European current or former members of the British or European Parliaments, and a former official of the European Commission. They have supported all of Hamdan’s prior appeals to the Supreme Court, and joined in recommending review of the latest one, saying that it raises issues not in the granted cases and the Justices should seek “to ensure uniformity of treatment of detainees and uniform compliance with international law. (This amicus brief can be found here.)
Solicitor General Clement’s opposition to review noted that Hamdan is seeking to raise other issues, specifically three constitutional questions not directly posed in Boumediene and Al Odah, but argued that the Supreme Court “might well resolve” those added claims when it decides the other cases. The Circuit Court, in the Feb. 20 decision to be reviewed by the Justices, found that Guantanamo detainees have no constitutional rights at all, so, Clement said, review may encompass any constitutional claim that might be raised. In any event, Clement said, those added constitutional questions (separation of powers, Bill of Attainder, and equal protection) “are without merit.”
The Solicitor General also recommended, on procedural grounds, that the Court should deny the new petition. He noted that, twice before, Hamdan has sought review of a petition before the case involved could be first decided by the D.C. Circuit Court, and the Justices had turned down both efforts. Clement thus suggested that Hamdan may have no right, procedurally, to try the same maneuver again, “for the third time in the course of this litigation and the second time this year.” The Court, he said, “should decline to consider the merits of this petition and deny it based on its successive nature.”
Once the Boumediene/Al Odah cases are decided, the government brief argued, the Circuit Court can take those into account in reviewing Hamdan’s case as it now stands. (Hamdan has asked the D.C. Circuit to hear his latest appeal there initially by the full, en banc court; the Circuit has not acted on that request, which the government has opposed.) Hamdan’s habeas challenge to his detention and to his war crimes prosecution before a “military commission” has been dismissed by a federal judge, relying upon the court-stripping provisions of the Military Commissions Act of 2006. That dismissal is what Hamdan is now contesting both in the Circuit Court and in the Supreme Court in 07-15.
Clement said in his opposition that Hamdan’s lawyers had raised the constitutional questions before the District Court, but the dismissal there kept the judge from ruling on those questions. The case now in the Circuit Court has not yet been briefed, the Solicitor General added, so those issues “have not previously been addressed by any court. They surely would benefit from the normal decisional process that a case undergoes before receiving plenary review by this Court. The Court should not resolve those claims in the first instance, but should await a decision by the court of appeals.”
If the Court does not deny the Hamdan petition outright, it should at a minimum hold it until it decides the other detainee cases, Clement recommended.
In arguing against the request to reconsider the April 30 denial of a prior petition, the Solicitor General said that Hamdan’s lawyer had passed up an on-time request for rehearing as part of their “litigation strategy,” and thus should not be allowed to try again. Moreover, there are no intervening changes sufficient to justify that reconsideration, the brief argued.
