New challenge to war crimes trials

By Lyle Denniston
on Jul 3, 2008 at 11:17 am

 UPDATE 4:23 p.m.  District Judge James Robertson, moving this new case along swiftly, has told the Justice Department to file its opposition on Monday, July 14, and detainee’s counsel to file their reply on Wednesday, July 16.  The judge set oral argument on the motion for Thursday, July 17.

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Lawyers for Salim Ahmed Hamdan — the Yemeni national detained at Guantanamo Bay whose case led to the scuttling of President Bush’s first attempt to set up military trials for terrorism suspects — moved on Thursday to stop the replacement system enacted by Congress.  In legal filings in U.S. District Court, Hamdan’s counsel sought a court order blocking the scheduled military commission trial of Hamdan, now due to begin on July 21.

“Like Hamdan’s previous challenge,” the new filing noted, “he contests the entire legality of the system to try him.”  The right not to be tried cannot be vindicted once a trial has occurred, it added.

The motion for a preliminary injunction asked that the trial be blocked until the District Court rules on his habeas challenge “to the legality and jurisdiction of the military commission.”  The new challenge was filed with District Judge James Robertson, who four years ago had struck down the initial military commission system (a decision ultimately sustained by the Supreme Court in 2006).  The motion can be downloaded here.  A 47-page legal memorandum supporting the motion can be found here.

The motion asked that Judge Robertson rule on the motion by July 21, and suggested a briefing schedule that would have the government opposition filed next Thursday, and a reply by Hamdan’s counsel by July 15.  Counsel agreed to avoid seeking a hearing or oral argument on the plea, if that would speed it up. If the government opts to delay the trial, the case can proceed on a “slower timetable,” the motion suggested.  (The military judge presiding over Hamdan’s case on June 26 refused a request for delay of the July 21 opening of the trial.)

The Justice Department has already signaled that it will oppose Hamdan’s effort to delay his trial. In a letter June 30 to District Court judges in Washington, the Department said habeas cases by those facing war crimes trials — Hamdan and others — should be delayed until after those trials are over, with a verdict.  Moreover, the government has indicated earlier that it may claim that the constitutional right to file a habeas challenge to detention does not include a right to challenge a war crimes trial.

“This case,” Hamdan’s legal argument on Thursday began, “raises the question whether the constitutional right to habeas corpus can be rendered illusory merely by subjecting an individual to an unconstitutional trial by military commission.  This Court should issue a preliminary injunction to preserve Hamdan’s right to vindicate his challenges to the legality of his military commission.”

After the Supreme Court struck down the presidential directive setting up military commissions, Congress later in 2006 created a new system under the Military Commissions Act.  That is the system now being challenged by Hamdan, who appears to be first in line for a trial before the new-style commissions.

As part of the MCA, Congress took away the right under federal law of Guantanamo detainees to file habeas challenges. As a result, Hamdan’s habeas petition was dismissed by Judge Robertson in December 2006, citing the MCA.

Hamdan’s counsel is now contending that the petition was revived when the Supreme Court ruled June 12 in Boumediene v. Bush that Guantanamo detainees have a constitutional right to pursue habeas claims. The Court did not spell out, however, what rights may be claimed once a habeas plea goes forward. And it did not say whether the right to bring a habeas claim applies to anyone other than detainees testing their confinement — and thus left open whether habeas had been withdrawn by Congress when the target was a military commission proceeding and, if so, whether that was constitutional.

Hamdan’s counsel in the war crimes case have already served notice  that they will be offering a series of constitutional challenges to trial by commission.  Those same challenges will ultimately figure in the habeas case before Judge Robertson, but Hamdan’s counsel argued that the judge need not decide them now in order to rule on the motion to bar the commission trial from starting.

The Supreme Court’s Boumediene decision, the memorandum contended, “cast aside the legal underpinnings of the commission slated to try Hamdan.  Congress established the commission under the belief that Guantanamo was a law-free zone…Boumediene rejects that premise. Now that the commissions must comport with the Constitution, Hamdan’s trial is likely to be held unlawful on the merits.  The Commission lacks personal and subject-matter jurisdiction. It violates structural elements of the Constitution as well as the laws of war.”

Citing the Supreme Court’s ruling in his earlier case, Hamdan’s counsel said the Court had “recognized the necessity of allowing a pre-trial habeas challenge to a military trial in this very case.  In 2006, it observed that ‘abstention is not appropriate in cases in which individuals raise ‘substantial arguments denying the right of the military to try them at all.’ “.

If Hamdan has to go to trial now, his lawyers said, he will have to lay out his full defense and thus expose it to the government for any subsequent proceeding, or else he will have to forgo the defense and run the risk of conviction.

For example, the memorandum said that his war crimes trial would go forward based on an assumption that he is an “enemy combatant,” because a military panel has found him to meet that status. But, to that assumption, it added, Hamdan would counter that he is entitled to be treated as a prisoner of war, immune from prosecution. But, if he made that point at the trial, it might undermine his claim at the habeas proceeding that he is not a combatant at all because the military panel designation of him as an enemy was wrong,  the memorandum contended.

“Requiring Hamdan to participate in the commission in advance of the habeas hearing would thus create a vicious catch-22, forcing Hamdan to either abandon one of the few possible defenses in his trial, or to forfeit much of his habeas hearing and thereby waive his right to challenge the…flawed determination of enemy combatancy,” the document said.

The courts, his lawyers asserted, should try to avoid the need for a second set of trials if Judge Robertson ultimately rules the commissions to be unlawful.  Allowing trial and habeas proceeding to go on at the same time, the memorandum added, “would cause consdierable confusion, judicial inefficiency, and uncertainty for all parties involved.”

A key part of the memorandum seeks to head off a likely argument of the government that the 2006 law that sought to withdraw all habeas rights for detainees remains intact, so far as prisoners try to challenge war crimes trials rather than simply their confinement.

If that law did take away habeas rights against war crimes trials, the document contended, it would be an unconstitutional suspension of habeas just as the Supreme Court, in Boumediene, found such an invalid suspension when the challenge is aimed at confinement alone.

The military commission sysem, it went on, is not an adequate substitute for habeas review of the authority to conduct a trial.by commission.

While the memorandum stresses it was not asking Judge Robertson to rule immediately on constitutional claims that will arise, it provides an extensive list to illustrate what those claims will be on the merits of the habeas petition (stated here as paraphrases of longer assertions made in the legal memorandum):

1. The Constitution applies fully to detainees at Guantanamo, and not just to their habeas right.   The judiciary must play a role in enforcing all of the rights, otherwise the Separation of Powers doctrine would be violated.

2. The Constitution bars any trial by a military commission if the accused is not constitutonally ruled to be an illegal enemy combatant, and Hamdan has not been so designated by a valid process.

3. The Constitution’s Ex Post Facto Clause forbids this prosecution for conduct that occurred before it was a crime,  The charges against Hamdan — a terrorism conspiracy, and aiding terrorism — are based on conduct that occurred before he was captured, and therefore before Congress made that conduct a war crime. 

4. The Constitution’s grant of power to define and punish violations of international law is limited, so that, if Congress in 2006 meant not to punish new crimes, but only those that existed previously under the law of war, Hamdan still can’t be tried because the specific accusations of him are not traditional crimes under the law of nations. 

5. The Constitution’s ban on “bills of attainder” — laws that punish by legislative action, without a trial — would be violated because Congress has singled out foreign nationals to be labeled by a system outside the court as illegal enemies, and provides for them to be punished for that status.  The 2006 law is not simply a preventive detention law, but has punishment as its sole purpose.

6. The Constitution’s guarantee of legal equality (the Equal Protection Clause) would be violated by trial before an “inferior” system set up only for foreign nationals, in this situation individuals without any power in the U.S. political process, so trying them would be an unconstitutional form of discrimination.

7. The Geneva Convention on the rights of prisoners applies to Guantanamo detainees, and incorporate some of the rights guaranteed by the U.S. Constitution. Hamdan could be tried only before a court that has all the guarantees considered traditionally to be indispensable.  A commission trial would violate such rights as the right not to testify against one’s self, the right not to be prosecuted through evidence obtained through coercion, and the right to argue international law as a valid defense.

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