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.
****Military commissions are legitimate forums to try enemy combatants because they have been approved by Congress
****The 1949 Geneva Convention is a treaty between nations and as such it does not confer individual rights and remedies
***Even if the Convention could be enforced in U.S. courts, it would not be of assistance to Hamdan at the time because, for a conflict such as the war against al-Qaeda that is not between two countries, it guarantees only a certain standard of judicial procedure--a "competent tribunal"--without speaking to the jurisdiction in which the prisoner must be tried
***al Qaeda and its members are not covered under the terms of the '49 Convention
Try as I might, I still cannot find any rational or legitimate reason why the SCOTUS would chosse to overrule the D.C. Circuit on this issue. It looks to me like the Circuit Court did its due diligence and arrived at the only correct conclusion.
In my (layman's) view, the SCOTUS decision smacks of purely personal political vindictiveness.
Hamdan's case dismissed, but new Act may be partly invalid
December 13, 2006 - Lyle Denniston (ScotusBlog)U.S. District Judge James Robertson, in a mixed ruling on constitutional and statutory law, ruled on Wednesday that Congress had not validly suspended the historic "writ of habeas corpus" in the new Military Commissions Act of 2006. Robertson, however, found that Congress had legally ordered the dismissal of all pending habeas cases filed in U.S. federal courts by foreign nationals being held by the U.S. military. Thus, the judge dismissed the case of Salim Ahmed Hamdan, who now could face war crimes charges before a new "military commission." Finally, Robertson ruled that Hamdan, as an alien with no voluntary ties to the U.S., had no constitutional right to challenge his detentioin in federal court. ...
Robertson's 22-page opinion explaining his ruling can be found here. His one-page order of dismissal can be found here. The case is Hamdan v. Rumsfeld (docket 04-1519.) ...
Because there probably would be few individuals who could benefit from the part of the ruling finding that MCA is unconstitutional, if it actually was found to suspend the writ, Robertson's decision amounts to a major victory for the Bush Administration and for the Justice Department's advocacy in defense of a sweeping view of the Act's scope. It could be particularly gratifying to the Administration, since it was Judge Robertson himself whose 2004 decision in the earlier stages of Hamdan's case found the Bush order creating war crimes tribunals to be invalid.
Robertson did not rule on an array of constitutional issues that Hamdan's lawyers had raised when the case returned to District Court from the Supreme Court. Having found that Congress had withdrawn his jurisdiction to continue to review Hamdan's habeas case, the judge said he would express no view on whether Congress had provided an adequate substitute for habeas review, whether Congress had acted unconstitutionally in barring judicial enforcement of the Geneva Conventions on treatments of prisoners, whether the new Act is an invalid form of legislative punishment (a "bill of attainder"), or whether it violates constitutional guarantees of legal equality.
Hamdan's lawyers have the option of appealing the dismissal to the D.C. Circuit Court, or to seek direct review in the Supreme Court. ...