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
Hamdan's case: Longer list of constitutional issuesLawyers for Salim Ahmed Hamdan, in a sweeping challenge to the new Military Commissions Act, on Friday added a handful of new fundamental constitutional complaints as they filed the first full-scale brief by opponents. Hamdan, whose case led last June to perhaps the most important Supreme Court ruling ever on presidential war powers, is facing war crimes charges before a military commission to be set up by the new Act.
The new 45-page brief seeking to head off that trial was filed in U.S. District Court; his case (04-1519) returned to the Washington court after the Supreme Court ruling. ...
But the brief also launches a broadside of other constitutioinal volleys against the Act. Here, in summary, are the main points as the brief recites what it calls "grave constitutional flaws" in the Act:
- It violates separation-of-powers principles. The brief says it would tell the courts to ignore at least one specific holding of the Supreme Court in Hamdan's case -- his right to protection under the Geneva Convention. It is aimed at settling pending cases in the courts in the government's favor, thus trepassing upon the judicial function, the brief asserts. It would bar Judge Robertson from enforcing an existing order in Hamdan's case against prosecution by the military commission system struck down by the Supreme Court, and might even bar the Supreme Court from enforcing its ruling against prosecution by the existing form of military commission. It would leave Hamdan, though he won his case, at the whim of the government when and how to try him under the new Act.
- It sets up a new commission system perhaps more deficient than the one struck down. There would be no way to test the commission before trial, the brief says, and there may be no possibility of judicial review at all since the government would control whether a commission case was ever made final by Executive Branch action.
- It amounts to an unconstitutional "bill of attainder." The brief argues that the Act imposes punishment "by legislative fiat" on an identifiable group -- wartime detainees.
- It violates the guarantee of equal protection of the law. The Act, according to the brief, "relegates aliens (even lawful resident aliens) to an inferior brand of justice, thereby stripping them of fundamental rights."
Many of these same arguments are likely to appear again as the Act faces challenges in pending cases in the D.C. Circuit Court, and in the Fourth Circuit Court, as briefing schedules unfold there.