Posted on 02/18/2006 10:45:03 AM PST by Cboldt
In an effort to "be informed," I've been collecting various source documents relating to enemy combatant cases. Not making a serious study of it, by any stretch, but the following collection may be a "heads up" about a news story that will probably come out when SCOTUS reports the results of their February 17th Conference.
Quick Facts about Hamdan
From Hamdan v. Rumsfeld, 415 F.3d 33 ...
Afghani militia forces captured Salim Ahmed Hamdan in Afghanistan in late November 2001. Hamdan's captors turned him over to the American military, which transported him to the Guantanamo Bay Naval Base in Cuba. The military initially kept him in the general detention facility, known as Camp Delta. On July 3, 2003, the President determined "that there is reason to believe that [Hamdan] was a member of al Qaeda or was otherwise involved in terrorism directed against the United States."
This finding brought Hamdan within the compass of the President's November 13, 2001, Order concerning the Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism, 66 Fed. Reg. 57,833. Accordingly, Hamdan was designated for trial before a military commission.
In December 2003, Hamdan was removed from the general population at Guantanamo and placed in solitary confinement in Camp Echo. That same month, he was appointed counsel, initially for the limited purpose of plea negotiation. In April 2004, Hamdan filed this petition for habeas corpus. While his petition was pending before the district court, the government formally charged Hamdan with conspiracy to commit attacks on civilians and civilian objects, murder and destruction of property by an unprivileged belligerent, and terrorism. The charges alleged that Hamdan was Osama bin Laden's personal driver in Afghanistan between 1996 and November 2001, an allegation Hamdan admitted in an affidavit. The charges further alleged that Hamdan served as bin Laden's personal bodyguard, delivered weapons to al Qaeda members, drove bin Laden to al Qaeda training camps and safe havens in Afghanistan, and trained at the al Qaeda-sponsored al Farouq camp. Hamdan's trial was to be before a military commission, which the government tells us now consists of three officers of the rank of colonel.
In response to the Supreme Court's decision in Hamdi v. Rumsfeld, 124 S. Ct. 2633 (2004), Hamdan received a formal hearing before a Combatant Status Review Tribunal. The Tribunal affirmed his status as an enemy combatant, "either a member of or affiliated with Al Qaeda," for whom continued detention was required.
On November 8, 2004, the district court granted in part Hamdan's petition. Among other things, the court held that Hamdan could not be tried by a military commission unless a competent tribunal determined that he was not a prisoner of war under the 1949 Geneva Convention governing the treatment of prisoners. The court therefore enjoined the Secretary of Defense from conducting any further military commission proceedings against Hamdan. This appeal followed.
The D.C. Circuit Court of Appeals held:
Lower Court opinion by Judge James Robertson (reversed on appeal)
Hamdan v. Rumsfeld, 344 F. Supp. 2d 152, 161. (D.D.C. 2004)
http://news.findlaw.com/hdocs/docs/tribunals/hamdanrums110804opn.pdf
Hamdan v. Rumsfeld, 415 F.3d 33 (D.C. Cir. 2005)
http://pacer.cadc.uscourts.gov/docs/common/opinions/200507/04-5393a.pdf
Hamdan's September 12, 2005 reply brief re: petition for a writ of certiorari
http://www.law.georgetown.edu/faculty/nkk/documents/cert.reply.final81.pdf
SCOTUS granted certiorari on November 7, 2005. Case No. 05-184
Oral argument is scheduled for March 28, 2006.
http://www.supremecourtus.gov/docket/05-184.htm
Hamdan's SCOTUS brief on the merits ...
http://www.abanet.org/publiced/preview/briefs/pdfs/05-06/05-184_Petitioner.pdf
The government has not filed a brief on the merits and has been granted an extension of time within which to file respondent's brief on the merits to and including February 23, 2006.
Links to an extraordinary number of amicus briefs ...
http://www.humanrightsfirst.org/us_law/inthecourts/supreme_court_hamdan.htm
Senator LEVIN's January 12 statement re: effect on pending cases ...
http://levin.senate.gov/newsroom/release.cfm?id=250420
Senator KYL (& GRAHAM) argue Congressional intent was to remove the Hamdan case
20 . ENEMY COMBATANTS -- (Senate - February 09, 2006)
Senator LEVIN argues Congressional intent was NOT to remove the Hamdan case
14 . DEFENSE AUTHORIZATION, 2006 -- (Senate - February 14, 2006)
SA 2524. introduced by Mr. GRAHAM (for himself, Mr. LEVIN, and Mr. KYL)
16 . NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2006 (November 14, 2005)
Debate continued into the next day, culminating in an 84-14 vote agreement to the amendment, and a 98-0 vote adopting S. 1042, the National Defense Authorization Act for Fiscal Year 2006
12 . NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2006 (November 15, 2005)
Jan 12 2006 Government files Motion to Dismiss for Lack of Jurisdiction.
Jan 31 2006 Petitioner files opposition to respondents' motion to dismiss.
Feb 13 2006 Government files reply brief in support of motion to dismiss for lack of jurisdiction.
Feb 15 2006 Petitioner files Motion for leave to file surreply.
Feb xx 2006 Motion(s) DISTRIBUTED for Conference of February 17, 2006
U.S. Department of Defense
Office of the Assistant Secretary of Defense (Public Affairs)
News Release No. 124-06 : February 9, 2006
Guantanamo Bay Detainee Administrative Review Board Decisions Completed
The Department of Defense announced today the completion of the first round of Administrative Review Board (ARB) decisions. All of the hearings for this first round were conducted from Dec. 14, 2004, to Dec. 23, 2005. Deputy Secretary of Defense Gordon R. England, the Designated Civilian Official (DCO) for the ARB process, has made final decisions on all 463 board recommendations; these decisions consist of 14 releases (3 percent), 120 transfers (26 percent) and 329 continue to detain (71 percent). ...
http://www.defenselink.mil/releases/2006/nr20060209-12464.html
> The Tribunal affirmed his status as an enemy combatant, ...
How about as an ILLEGAL enemy combatant, which is rather
a different thing altogether.
AFAIK, "enemy combatant" is the extent of the term used, and it connotes a status that can be used (but is not necessarily used) to keep a person out of the apparatus we know as Article III Courts.
Or put anther way, all enemy combatants are subject to incarceration and punishment by the capturing government.
I'm curious what you envision as a "legal enemy combatant," in contrast to your proposed label, "illegal enemy combatant."
>> How about as an ILLEGAL enemy combatant,
Aka, unlawful enemy combatant
> I'm curious what you envision as a "legal enemy combatant,"
Someone who is both in uniform, and an enrolled
combatant on behalf of a state that is a signatory
to applicable Conventions, neither of which applies
to members of the Cutthroat Cult.
In wars past, these folk (e.g. spies, infiltrators)
were subject to summary execution.
Friday, February 17, 2006
Administration, senators call for detainee rulings
Posted by Lyle Denniston at 04:28 PM(UPDATE: The following report has been updated to include material from the new brief filed by the Justice Department in the D.C. Circuit. The filings came in the combined cases that begin with Boumediene v. Bush [05-5062].).
The Bush Administration and two Republicans who helped negotiate the terms of the new Detainee Treatment Act, stripping courts of power to decide existing court challenges by war-on-terrorism prisoners at a military prison camp in Cuba, urged the D.C. Circuit Court on Friday to go ahead and rule on the captives' claims but only within the limited court review system newly set up.
The Administration views, expressed in a new filing by Solicitor General Paul D. Clement and other Justice Department lawyers, argued that the detainees are seeking a "breathtaking" new constitutional ruling giving foreign nationals held outside the United States a constitutional right to bring a habeas challenge to their imprisonment at Guantanamo Bay in Cuba. "Because [the detainees] are aliens outside the sovereign territory of the United States," the brief contended, "they have no constitutional rights" under the Constitution's Suspension Clause, which limits the situations in which the writ of habeas corpus may be withdrawn.
But, the brief went on, even if the detainees have some rights under that clause, the new Act would not undermine those rights. The new court review process created by the Act, it contended, "is more than constitutionally sufficient." If the cases proceed in the D.C. Circuit, the government said, detainees may raise there any "concerns about the legal adequacy" of the process the military used to declare them to be "enemy combatants" and to decide that they must remain confined.
The brief did argue, though, that the detainees would not be entitled, in pursuing their challenges in the D.C. Circuit under the new law, to have the Court probe into the facts of the "combatant" designations. "Habeas courts," it said, "do not find facts, but rather engage in highly deferential sufficiency review."
In the amicus brief filed by Senators Lindsey Graham of South Carolina and Jon Kyl of Arizona, the arguments exactly parallel the views of the Bush Administration on the scope of the new Act and what the courts should do with already-pending cases.
Both briefs contended that, because of the new law, federal District Courts have lost all authority to hear any challenge by a prisoner at Guantanamo Bay, but that the D.C. Circuit may allow those who have been designated as "enemy combatants" to re-file their challenges in the Circuit Court so that the cases can go forward there. A variation of this argument has also been made in the Supreme Court by the Administration, urging it to dismiss a pending challenge to the new war crimes "military commissions" set up for a small number of Guantanamo detainees. Those facing war crimes charges, however, would not be able to pursue a new challenge in the Circuit Court until they first were convicted.
The legal arguments in the Circuit Court briefs essentially make three points: first, that the text of the new Act and its legislative history make clear that all pending cases have been wiped out because they are habeas challenges and Congress has nullified that basis for court jurisdiction; second, that wiping out pending cases does not amount to an unconstitutional suspension of the habeas writ because the detainees have no constitutional right to pursue habeas, and third, there is no need to dismiss outright all pending cases, but to allow them to continue in the D.C. Circuit.
The D.C. Circuit had called for additional briefs in the pending cases, on the impact of the new Act on the existing challenges. It expressly asked attorneys to file theiir views on what the Circuit Court should do with two conflicting District Court rulings on detainees' rights, should it find that Congress has taken away habeas jurisdiction. The government and its supporters were filed by the Friday deadliine. Two groups of detainees are to file responses on March 10, with a government reply on March 17. The Circuit Court will hold a hearing on the issue March 22.
http://www.scotusblog.com/movabletype/archives/2006/02/two_senators_we.html
http://www.scotusblog.com/movabletype/archives/AlOdahSuppBrief-Final.pdf
http://www.scotusblog.com/movabletype/archives/GrahamKylAmicus.pdf
http://www.scotusblog.com/movabletype/archives/2006/02/two_senators_we.html
http://www.scotusblog.com/movabletype/archives/2006/02/a_final_move_to.html
http://www.scotusblog.com/movabletype/archives/2006/02/government_deta.html
http://www.scotusblog.com/movabletype/archives/2006/01/hamdan_new_law.html
http://www.scotusblog.com/movabletype/archives/2006/01/wider_sweep_for.html
http://www.scotusblog.com/movabletype/archives/2006/01/twotrack_review.html
http://www.scotusblog.com/movabletype/archives/2006/01/a_new_front_in.html
bttt
The Court postponed until a hearing on March 28 whether to dismiss a constitutional challenge to the war crimes "military commissions" set up at the Navy prison camp at Guantanamo Bay, Cuba. Chief Justice John G. Roberts, Jr., took no part in the order, thus indicating he will continue his recusal from the case. The Bush Administration contends that the newly enacted Detainee Treatment Act requires the dismissal of all pending challenges by Guantanamo detainees. (Hamdan v. Rumsfeld, 05-184).In another war on terrorism case, the Court took no action Tuesday on the appeal by Jose Padilla, a U.S. citizen challenging his capture and long-term detention as an "enemy combatant" (Padilla v. Hanft, 05-533).
http://www.scotusblog.com/movabletype/archives/2006/02/court_to_hear_p.html
Thursday, February 23, 2006
Government merits brief in Hamdan05:49 PM | Lyle Denniston | Comments (0)
The Solicitor General on Thursday filed the federal government's brief on the merits in the case challenging the war crimes "military commissions" set up for terrorism suspects at Guantanamo Bay, Cuba (Hamdan v. Rumsfeld, 05-184). The brief opens with a renewal of the government's argument that the case must be dismissed under the new Detainee Treatment Act, as well as an assertion that Hamdan has filed his challenge too early.
The summary of argument opens this way: "Petitioner's pre-trial challenge to his military commission is jurisdictionally foreclosed by the Detainee Treatment Act of 2005 and fatally premature."
The brief and appendix can be found here.
In addition, the amicus brief of Senators Graham and Kyl, supporting respondent, can be found here. An additional amicus brief supporting the government from the Criminal Justice Legal Foundation can be found here.
http://www.scotusblog.com/movabletype/archives/2006/02/government_meri_1.html
Jan 12 2006 Government files Motion to Dismiss for Lack of Jurisdiction.
Jan 31 2006 Petitioner files opposition to respondents' motion to dismiss.
Feb 13 2006 Government files reply brief in support of motion to dismiss for lack of jurisdiction.
Feb 15 2006 Petitioner files Motion for leave to file surreply.
Feb 15 2006 Petitioner Surreply Regarding Respondent's Motin to Dismiss
Feb xx 2006 Motion(s) DISTRIBUTED for Conference of February 17, 2006
Feb 21 2006 Motion to file amici curiae brief by Former Federal Judges GRANTED
Feb 21 2006 Motion to file surreply regarding respondents' motion to dismiss GRANTED
Feb 21 2006 A total of 90 minutes is allotted for oral argument.
Feb 21 2006 Further consideration of respondents' motion to dismiss for lack of jurisdiction is deferred to the hearing of the case on the merits.
Feb 23 2006 Government files Brief on the merits.http://www.supremecourtus.gov/docket/05-184.htm
Friday, March 10, 2006
Analysis: the next challenge by detainees
Posted by Lyle Denniston at 08:12 PMLawyers for foreign nationals being held at the war-on-terrorism prison camp at Guantanamo Bay, Cuba, gave iindications on Friday that broad new legal challenges will follow if the detainees' existing cases are thrown out under a law passed late last year by Congress. Although intent on keeping alive those present lawsuits, the attorneys laid the groundwork for keeping detainee cases in the courts for some time to come. The court-stripping law adopted in late December, the Detainee Treatment Act, may turn out to have been a virtual invitation to a continuing court struggle.
Two new briefs were filed in a packet of detainees cases at the D.C. Circuit Court (the lead case is Boumediene, et al., v. Bush, et al. (05-5062). Those cases basically challenge the government's authority to capture and detain foreign nationals without charging them with any crime. After the Justice Department files a brief next Friday, the D.C. Circuit will move on to a hearing on March 22 to analyze the meaning and the impact of the Detainee Act. The initial question is whether that law wipes out all existing habeas challenges, and substitutes in their place a sharply limited review of detainees' claims in that Circuit Court.
The main arguments in the briefs here [http://www.scotusblog.com/movabletype/archives/Boumed.pdf] and here [http://www.scotusblog.com/movabletype/archives/AlOdah.pdf] are familiar: principally, that Congress did not intend to scuttle the existing detainees' cases, but only to fashion a limited review process for future cases, and -- if Congress did intend to wipe out the present claims -- the Act is unconstitutional as a suspension of the writ of habeas corpus. The arguments are supported by various amici, including Sen. Carl Levin, Michigan Democrat and one of the authors of the new law, and two groups of scholars, here [http://www.scotusblog.com/movabletype/archives/HabeasScholars.pdf] and here [http://www.scotusblog.com/movabletype/archives/Legalscholars.pdf].
The briefs, while making those core arguments, also indicate that the government may have to fight a two-front legal war the next time around. One would be a challenge to the process that the Pentagon set up hastily in 2004 in hopes of satisfying the Supreme Court -- the process that led to rulings that almost all of the detainees remained dangerous enough that they had to be kept in prison as "enemy combatants" (but still without criminal charges). The other would be a challenge to the new version of that process that Congress mandated in the Treatment Act. These would go forward in the D.C. Circuit and, presumably, on into the Supreme Court.
If the D.C. Circuit were to rule in the present cases that the new Act does not apply to the detainees' existing cases, those would then go forward on a broad constitutional claim that the government had no authority to capture or detain them in the first place. That is not a direct challenge to any review process at Guantanamo; it is, rather, a more fundamental assertion that they should not be at Guantanamo at all, and thus should be released.
But the review processes would become the center of a new challenge, if the courts were to conclude that Congress has wiped out the existing habeas petitions.
A bit of background will set the stage on what is going on here.
After the Supreme Court, in Rasul v. Bush, ruled in 2004 that the Guantanamo detainees must be provided some forum where they could challenge their capture and detention, the Pentagon set up so-called "combat status review tribunals" at the Cuba base. Their task: review the reasons for keeping the detainees and decide whether to prolong their detention. The process worked quickly, but under a cloud over evidence-gathering and over the limited rights of detainees in the process.
Congress decided, as part of its action on the Detainee Act, to change those tribunals. It ordered the Pentagon to come up with new procedures for them, including provisions to assure that evidence used against detainees had not been gathered by torture or coercion. Not one of these new tribunals has yet been set up; indeed, the Pentagon has yet to supply to Congress the specifics on how they will operate.
These differences form part of the argument of the detainees that the Act does not apply to them -- that is, they have not gone through the new process, so Congress meant that to apply to future detainee claims, after the new process has started to work. (Further, they argue that any court review of the new process would be so limited that it could not be considered a substitute for habeas and that, too, means Congress could not have constitutionally nullified existing habeas claims.)
But, should the courts disagree on that point, the detainees want the D.C. Circuit simply to wipe the existing cases off the docket, and let the prisoners start new challenges in the Circuit Court. They resist the government's suggestion that the Circuit Court simply treat the existing cases as challenges to the new process, on the government's theory that there is little difference between the review process the detainees had at Guantanamo, and the new version.
Both the old and the new Guantanamo tribunals, however, clearly would be assailed by the detainees before the D.C. Circuit -- whether it keeps its present review of the cases going, or dismisses those and allows the detainees to start over. A centerpiece of the challenge to the original tribunals would be the apparent lack of a ban on evidence gathered by torture or coercion. And the challenge to the new process will include both the claim that detainees' rights are not fully assured in those, either, and on the separate claim that the D.C. Circuit would not be allowed by the new Act to make a searching inquiry into the basis for continued detention, and would not have the authority to order any detainee's release even if the prisoner succeeded in challenging detention.
And, as a further maneuver that indicates the courts' inquiry could be prolonged, the detainees asked the D.C. Circuit, if it rules now that it has lost jurisdiction, to put that decision on hold until the detainees have a chance to appeal to the Supreme Court.
The prospects are further complicated by the fact that the Supreme Court is already looking at the meaning of the Detainee Treatment Act, but in a different context. The Justices are examining whether that Act wipes out a challenge pending there to the war crimes "military commissions" set up at Guantanamo for actual trials. (Hamdan v. Rumsfeld, 05-184) The Court is to hold a hearing on the Hamdan case, including the jurisdictional issue, on March 28.
http://www.scotusblog.com/movabletype/archives/2006/03/the_next_challe.html
Hamdan Reply Brief04:40 PM | Heather Lloyd
Today, petitioner's counsel filed the Reply Brief in the Hamdan case. It can be found here [http://www.scotusblog.com/movabletype/archives/HAMDANFINALREPLY.pdf].
http://www.scotusblog.com/movabletype/archives/2006/03/hamdan_reply_br.html
Awesome offer - I don't really have a question. I just feel that the case is an important one, on several matters. It isn't getting any press coverage, but it will on March 28th.
Is he arguing the case before SCOTUS? Are you planning to attend the oral argument?
Anyway, I'll keep your offer in mind. I just gathered a number of cases, relating to detention, NSA surveillance, etc. and trying to wrap my arms around the range of legal options. This "new kind of war" is really serious stuff, and I figured instinctively, on September 11, 2001, that "freedom as we knew it" was going to be stripped away - and that because the people would demand it be taken from them.
It's probably too late for ow, but consider joining the Supreme Court Historical Society - I was able to view some oral arguments without going throught he usual public line, as we (a group of law students) were escorted by others. Of course, we had to submit to the same security and whatnot, but given (IIRC) a few weeks heads up, we were able to obtain seating on a date certain.
I drove down from Maine, so perhaps we got treatment that isn't given to the locals ;-)
Wish him good fortune, a very short time of butterflies, and clarity of mind. I enjoy good oral argument and appellate action.
Briefing now complete in detainees' cases09:48 PM | Lyle Denniston
The Justice Department on Friday evening filed the final brief in the D.C. Circuit Court on the impact of the new Detainee Treatment Act on the pending challenges to detention by foreign nationals being held at Guantanamo Bay, Cuba. The case now proceeds to a hearing before a three-judge panel on Wednesday.
Again, the Department argues that the Act scuttles all existing habeas challenge by the Guantanamo prisoners, but that the Act allows the D.C. Circuit to go forward and rule on the substance of their challenges in a new review process created by the Act.
In addition, the Department once more argues that the detainees have no constitutional claim about suspension of the writ of habeas corpus, because they have no constitutiional rights of any kind.
Tuesday, March 21, 2006
Hamdan hearing to be broadcast03:23 PM | Lyle Denniston
Broadcast networks will be able to provide next Tuesday, March 28, the audio recording of the 90-minute oral argument in the "military commission" case, Hamdan v. Rumsfeld (05-184). The Court's public information officer, Kathleen L. Arberg, on Tuesday announced that the Court had authorized the expedited release of the audiotape. It will be released, Arberg said, shortly after the argument concludes; if the argument begins as scheduled at 11 a.m., that should mean broadcasters will be offering it soon after 12:30 p.m.
The case will be argued by Georgetown law professor Neal Katyal for Salim Ahmed Hamdan, and by Solicitor General Paul D. Clement for the federal government.
Besides arguing the merits of the President's order creating the tribunals to try foreign nationals on war crimes charges, the attorneys will debate the impact on the Hamdan case -- and other detainee cases -- of the court-strippiing law enacted late last year by Congress, the Detainee Treatment Act of 2005.
Only eight members of the Court are expected to hear the case. Chief Justice John G. Roberts, Jr., who was on the D.C. Circuit Court panel that upheld the presidential order last year, has recused himself from all matters involving the case at the Court. The senior Associate Justice, John Paul Stevens, will be in charge.
Broadcast organizations interested in the technical details of the audiotape release can find the Court's press release here.
Analysis: Hamdan and a few minutes in the Senate05:17 PM | Lyle Denniston
In the few minutes that it took the Senate to complete passage of the Detainee Treatment Act last Dec. 21, little was said in the chamber beyond a round of congratulations for a job well done. But the Congressional Record for that very brief legislative effort now runs to 21 pages, with three columns of small print per page. And out of that Record of what was not said but nevertheless was recorded has emerged a debate that may go a long way to influence how the Supreme Court and the D.C. Circuit Court resolve the next big controversy arising out of the war on terrorism. ...
That running controversy in two courts begins, of course, with a dispute over the meaning of the words Congress chose to write into the new detainee law. Detainees' lawyers read it as clearly indicating that Congress did not intend to wipe out existing cases pending in the courts when the Act passed; they have a key Senator and a number of amici on their side. The governmen's lawyers are just as insistent that the Act clearly does, indeed, end all habeas jurisdiction; they have two key Senators and a number of amici on their side.
It could be, of course, that either the Supreme Court or the D.C. Circuit will find the answer in the language alone; Justice Antonin Scalia, for one, is almost certain to want to focus solely on the words themselves, believing -- as he does -- that legislative history is not dependable history at all. But other Justices, and Circuit Court judges, may not be satisfied with the words alone and may want to look into legislative history. Figuring prominently in that history are those 21 pages of the Congressional Record for last Dec. 21.
Final Senate consideration of the National Defense Authorization Act for Fiscal Year 2006 -- containing the detainee law -- was perfunctory. No one debated the meaning of any provision in the bill, and it won passage without a recorded roll-call vote.
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