Swift responses to new law on detainees
12:37 PM | Lyle DennistonCongress' new legislation reacting to the Supreme Court's June 28 decision in Hamdan v. Rumsfeld has now been signed into law. This is expected to set the stage for a variety of new challenges to various provisions in the new law, ultimately reaching the Supreme Court. At this early point, it is unclear which case or cases may provide tests of those provisions. One early test may come in the U.S. Court of Appeals for D.C.
Shortly after President Bush on Tuesday signed into law a new bill on the government's powers to deal with detainees captured during the war on terrorism, the Justice Department notified the U.S. Court of Appeals for D.C. of that action, and urged the Court to decide "forthwith" the existing challenges by detainees at Guantanamo Bay, Cuba.
In a letter to the clerk of the Circuit Court, found here, a Justice Department appellate attorney suggested that the three-judge panel should decide two packages of detainee cases without further briefing. Attorney Catherine Y. Hancock noted that the new act wipes out all habeas challenges by any war-on-terrorism detainee, and that lawyers for detainees contend that this is an unconstitutional suspension of the writ. "That issue was raised and fully addressed at the March 22 argument, as well as in the prior rounds of supplemental briefing. The Court should therefore decide that issue and the merits of these appeals forthwith, based on the existing briefing," Hancock's letter said.
Lawyers for detainees, however, moved swiftly on Tuesday to seek supplemental briefing on the impact of the new law on the pending cases.
In the Justice Department letter to the appeals court, Hancock commented that the new Military Commissions Act of 2006 that the President signed "unambiguously eliminates District Court jurisdiction" over all of the detainees' claims.
She also noted that the new Act "makes explicit" that no detainee may bring a challenge based on the Geneva Conventions. She asserted: "The Act, therefore, supports the Government's argument that petitioners' treaty claims should be dismissed."
The Circuit Court has been weighing the detainees' cases for months, and has had several rounds of briefings. The lead cases are Al Odah v. U.S. (Circuit >docket 05-5064) and Boumediene v. Bush (05-5062).
In the Hamdan decision, the Supreme Court struck down President Bush's original plan for war crimes trials before newly established "military commissions." Congress authorized the creation of a similar system in the new measure that is now law. That law also would channel all challenges to military commission decisions, as well as all challenges to any other military proceedings involving detainees, to a limited review process in the D.C. Circuit. In the Al Odah and Boumediene cases, two U.S. District judges in Washington, D.C., reached opposite decisions about whether the detainees at Guantanamo had any legal rights they could pursue in habeas, and whether any such rights might include some protection under the Geneva Conventions.
Judge to review Hamdan case further01:30 PM | Lyle Denniston
U.S. District Judge James Robertson on Friday ordered a new review of his Court's authority to decide remaining issues in the case of Salim Ahmed Hamdan -- the individual whose case led to the Supreme Court decision last June nullifying President Bush's system for war crimes tribunals for suspects held at Guantanamo Bay, Cuba.
Robertson sits in Washington, D.C., and had originally struck down the tribunals. After the Supreme Court ruled in Hamdan's favor (Hamdan v. Rumsfeld ) on June 28, the D.C. Circuit Court returned the case to Robertson for further proceedings. Hamdan contends that he still wants to challenge the government's original decision to detain him at Guantanamo Bay. His lawyers asked for new briefing on that and other issues.
After Congress passed and the President signed the new Military Commissions Act of 2006, setting up a new system of war crimes tribunals and seeking to scuttle all pending habeas cases, the Justice Department simply notified Judge Robertson and others with habeas cases of the new law, without recommending any specific action.
In a one-paragraph order issued Friday, Robertson opted to treat the government's notice as a "motion to dismiss for want of subject matter jurisdiction," and set up a briefing schedule on that issue. Hamdan's attorneys may respond to that motion within 21 days, and the Justice Department may reply 14 days later.
Here is the text of the order in Hamdan v. Rumsfeld (District Court docket 04-1519):
Upon consideration of petitioner's motion for order setting schedule for briefing subject matter jurisdiction and of respondents' notice of filing Military Commission Act, it is ORDERED that respondents' notice is deemed to be a motion to dismiss for want of subject matter jurisdiction; that petitioner may have 21 days from the date of this order to file his opposition; and that respondents may have 14 days after the filing of petitioner's opposition in which to file their reply.JAMES ROBERTSON
United States District Judge