Hamdan Case & The Detainee Treatment Act [Vanity]

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.

Summary of Hamdan Case

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.

Activity before the Supreme Court

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.

Effect of the Detainee Treatment Act on Pending Cases

Congressional Intent is Muddy

Links to the Congressional Record

Action at SCOTUS is HOT on the Jurisdictional Effect

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

Other Cases are Pending

Another piece of brief analysis and speculation at ScotuBlog, excerpted here ...

Analysis: Hamdan and the prospects of tie votes
March 26, 2006 | 10:37 PM | Lyle Denniston
On Tuesday morning, at 11 o'clock or a few minutes after, Chief Justice John G. Roberts, Jr., is expected to rise from the bench, and depart from the courtroom. He has taken himself out of every preliminary action on the war-on-terrorism case of Hamdan v. Rumsfeld (05-184), so that is expected to continue Tuesday. But his departure raises at least the possibility that the other eight Justices might cast a 4-4 tie vote.
If such a vote comes on the merits, the result will be clear-cut: the Court will have upheld a decision by the D.C. Circuit Court finding no legal defect in ithe war crimes tribunals called "military commissions." In that event, no precedent would be set, and the Justices will issue no opinion. Still, that would mean that foreign nationals facing war crimes charges would be tried under the system the Pentagon now has in place and ready at the detainee prison at Guantanamo Bay, Cuba. If any were then convicted in such a proceeding, they presumably could attempt to bring some kind of challenge in federal courts, although the scope of that kind of review s in doubt.
But before an eight-Justice Court could rule on the merits in the Hamdan case, it must first satisfy itself that it has jurisdiction to hear and decide that dispute. The Supreme Court's jurisdiction to hear appeals is not open-ended, so a threshold issue in any case is whether a given lawsuit can, indeed, be decided there. Suppose, though, that the Justices split 4-4 on this issue in Hamdan. What then? The result is not as clear as it would be if the Court proceeded to the merits, and split 4-4. ...
(NOTE: At a legal conference Friday in Washington, the issue of a tie vote on jurisdiction in Hamdan was explored informally among a few seasoned Supreme Court advocates. The consensus: a 4-4 vote would not be sufficient to find jurisdiction, so the case would have to be dismissed. Readers of the blog are invited to join in this exploration.)

Tuesday's Argument in Hamdan v. Rumsfeld
This post was written by Stanford Law Student Scott Reents.
Disclosure: Goldstein & Howe is co-counsel for petitioner.
Petitioner Salid Ahmed Hamdan is a detainee being held at Guantanamo Bay, Cuba. He was captured in Afghanistan in November 2001 and admits to being a personal bodyguard and driver to Osama bin Laden. He was charged with conspiring to commit acts of terrorism, and was to be tried before a military commission, which is a special adjudicatory body created by Presidential order to try individuals accused of war crimes.
Before trial, Hamdan challenged the lawfulness of the military commission that was to try him, and in November 2004, the D.C. District Court enjoined the military commission proceedings as illegal under the Geneva Convention and the Uniform Code of Military Justice (UCMJ). The court of appeals for the D.C. circuit reversed, holding that military commissions had been duly authorized by Congress; that relief was unavailable under the Geneva Convention because it did not create privately enforceable rights and because it did not apply to Al Qaeda; and that the UCMJ did not preclude Hamdan's trial before military commissions.
The case deals with legality and scope of military commissions in the war on terror. While Hamdi v. Rumsfeld and Rasul v. Bush (2004) addressed the issue of the prospective detention of enemy combatants (holding that the Government had the authority to detain alleged enemy combatants in the conflict but that alleged enemy aliens held in Guantanamo Bay, Cuba, had a right to file petitions for habeas corpus to challenge the basis of their detention), this case addresses the use of military commissions to impose retrospective punishment on individuals charged with acts relating to terrorism.
As a threshold matter, respondents argue that the Court lacks jurisdiction to hear this case at all. They argue that the Detainee Treatment Act of 2005 (DTA), enacted by Congress after the Supreme Court granted certiorari in this case, preclude pre-trial review by establishing an exclusive post-trial review process for all Guantanamo detainees. In addition, the Government has argued, even absent the DTA, the Court should withhold ruling on the merits until a final decision has been reached in accordance with traditional abstention doctrine. Petitioner, on the other hand, argues that Congress specifically modified the effective date provisions of the DTA to ensure that the Supreme Court could decide this case.
On the merits, petitioner argues that the military commission that seeks to try him is not authorized to do so under U.S. law. Citing Ex Parte Quirin (1942) and In re Yamashita (1946), he argues that such authorization must be explicitly provided by Congress. Respondents dispute whether such explicit authorization is required, pointing to the historical practice of the President convening military commissions as evidence of his inherent "Commander-in-Chief" power to do so.
To the extent that Congressional authorization is required, two statutes are in play. The first is the Authorization for Use of Military Force (AUMF), passed by Congress shortly after September 11, and granting the president the authority to "to use all necessary and appropriate force" against Al Qaeda. Respondents cite Hamdi for the proposition that it is sufficient authority because "the capture, detention, and trial of unlawful combatants" (emphasis added) are incidents of war authorized by the statute. But Petitioner argues that at most, the AUMF contemplates the use of military commissions within their traditional jurisdiction, which includes trying war criminals in traditional wars (like the conflict between the United States and the Taliban) but not individuals charged with conspiracy to engage in terrorism unrelated to that conflict. Moreover, petitioner argues, to the extent commissions are authorized, they must afford the traditional procedural protections provided by military commissions in the past, which this commission fails to do.
The second statute is the UCMJ, the law creating the court martial system for the administration of justice inside the military. UCMJ provisions state that the creation of courts martial and their procedures does not in any way limit jurisdiction of military commissions nor the President's authority to prescribe their rules. Petitioners deny that this language is enough to suggest explicit authorization, while respondents say that materially similar language was held to authorize just that in Ex Part Quirin. Petitioner again argues, however, that at most, the UCMJ authorizes commissions operating within the traditional scope of jurisdiction and with the traditional procedural protections of military commissions of the past.
Toward this end, petitioner argues that the current commissions transgress traditional, statutory limitations on commissions. First, petitioner argues, the present commission have been authorized to try new crimes, defined by the President, that are not recognized by the laws of war, in particular, the crime of conspiracy to commit terrorist acts. The laws of war do not recognize even conspiracy to commit a traditional war crime, petitioner argues, pointing to decisions by international war crime tribunals after World War II. Second, petitioner asserts that terrorism by stateless entities like Al Qaeda have never before been recognized as falling within the purview of military commissions, rather than civilian criminal courts. To construe it as a war would threaten the fundamental liberties of potentially thousands of defendants accused of having ties to terrorist organizations, including even U.S. citizens. Finally, petitioner argues that the commissions do not afford him rights guaranteed under the UCMJ for all military tribunals, including the right to be present at his own trial.
Respondents dispute each of these arguments. First, respondents argue that conspiracy is indeed cognizable under the laws of war, and point to Quirin, among other cases, as an example, in which conspiracy was alleged as a war crime. Respondents further insist that petitioner is subject to the laws of war as a matter of tradition and that, in any event, Congress authorized the use of commissions against members of Al Qaeda through the AUMF. In addition, respondents argue, the determination of what is or is not a "war" is a best made by the President himself, that he has determined that the conflict with Al Qaeda is a war, and that this determination is, on the merits, correct. Finally, respondents deny that the procedural provisions of the UCMJ apply to military commissions and assert that, in any case, the UCMJ authorizes the President to deviate from the procedures afforded in other proceedings (like courts martial) to the extent he deems it necessary.
Petitioner also alleges that the Commissions violate provisions of the Geneva Conventions. First, petitioner argues that because he has asserted to be a prisoner of war from the traditional conflict between the United States and the Taliban, the Conventions require that he be provided a hearing to determine his POW status and, until then, given the same procedural protections that would be given an American serviceman alleged of war crimes (namely, trial by court martial).
Petitioner further argues that even if he is not entitled to POW status, he is still protected by common Article 3. This article requires that even non-POWs be tried before a "regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples." A trial before a military commission would not meet this requirement because they are ad hoc rather than "regularly constituted," and because they do not provide sufficient "judicial guarantees."
Respondent denies the applicability of the Geneva Convention, arguing that treaties do not confer individually cognizable rights, and that they ought be enforced through diplomatic rather than judicial means. But even if it does confer rights, respondent argues that petitioner is not entitled to the protections of the Convention because Al Qaeda is not a party to the convention and because the Petitioner is not a POW as defined under the Convention. Finally, respondents argue that petitioner has been given an adequate hearing to determine his POW status through his enemy combatant status review and that the military commission is regularly constituted within the meaning of the Conventions.

More from ScotusBlog.

Tuesday, March 28, 2006
Analysis: Hard day for government in Hamdan case
Posted by Lyle Denniston at 01:02 PM
With Justice Antonin Scalia taking part -- and, in fact, providing the only clearcut signs of unstinting support for the federal government's arguments -- the Supreme Court on Tuesday probed deeply into the validity of the war crimes tribunals set up by President Bush, and came away looking decidedly skeptical. From all appearances during the 90-minute argument, the Court may have some difficulty fashioning an opinion, but perhaps not a result: the existing "military commission" scheme may well fail.
The Court spent comparatively little time on the issue of whether it has jurisdiction to proceed to a ruling on the merits in the case of Hamdan v. Rumsfeld (05-184), but Justices Stephen G. Breyer and David H. Souter strenuously -- and repeatedly -- advanced the point that the Court would have to find it has jurisdiction in order to avoid the very difficult constitutional question of Congress' power to abolish all forms of habeas challenge to the treatment of war-on-terrorism detainees. It was a point that seemed likely to draw the support of enough Justices to prevail.
If the Court does proceed to the merits, it appeared that there would be at least three ways that a majority could be formed to find the "military commissions" to be flawed: first, those tribunals would be using procedures that would violate federal laws, the Constitution, or an international treaty; second, a variation of the the first, the "commission" system was not set up properly in the first place, or, third, they can only try crimes that definitely are recognized under the international laws of war and that does not include the most common charge brought so far -- terrorism conspiracy. There was little exploration of ultimate arguments against the "commission" setup: the claim that the President had no power to create them on his own, without specific authorization from Congress, and, alternatively, the claim that Congress has not given him that power.
With only eight Justices participating (Chief Justice John G. Roberts, Jr., is recused), it appeared that Justice Anthony M. Kennedy might well emerge as holding the decisive vote. In a variety of ways, Kennedy seemed troubled about the legitmacy of the tribunals as presently arranged. Most of his questions seemed aimed at locating the specific deficiencies that might be found in their functioning. At one point, he suggested openly to the detainees' lawyer, Georgetown law professor Neal Katyal, that the Court might well "think there is merit" in his argument that the tribunals were not "properly constituted." In that event, Kennedy suggested, the Court would not have to get into the complex question of what kind of charges were within the tribunals' authority to try.
There were a number of comments or questions indicating that the detainees may well be able to draw the votes of Justices Breyer, Souter, Ruth Bader Ginsburg and John Paul Stevens. There was no doubt whatsoever that Justice Scalia (whose recusal had been suggested by some amici, troubled over public statements he made about detainees' rights) would line up definitely on the side of the "commissions" in their present form. Justice Samuel A. Alito, Jr., through a few questions, seemed to be sending a message that he was inclined to allow the "commissions" to go forward with trials, leaving any challenges until after convictions, if any, emerged. Justice Clarence Thomas said nothing, but he has been, in the past, the Court's most fervent supporter of presidential wartime powers.
The overall tone of the hearings seemed significantly in favor of the challenge to the new tribunals. Solicitor General Paul D. Clement, defending the tribunals, seemed more challenged than is customary for him; indeed, at times he appeared genuinely relieved at the help Justice Scalia provided for his argument. He rushed to embrace Scalia's points as if they were stronger than his own.
For the most part, the session was subdued and understated, especially given the historic dimensions of the dispute before the Court -- a major test of Executive power in the midst of vigorous presidential responses to a proclaimed "war on terrorism." But there was definitely an emotional high point, and that came when Breyer, then Souter, focused on the law that Congress passed late last year that threatened to scuttle the Hamdan case, and all other pending court cases filed by foreign nationals now being detained at Guantanamo Bay, Cuba. That law, the Detainee Treatment Act, is a court-stripping measure that raises serious questions about whether President Bush's orders dealing with captured foreign detainees will ever be fully tested in court.
The drama developed slowly, and a bit surprisingly, since the meaning of the new detainee law and its impact on the courts had not figured prominently in the hearing up to that point. But the issue clearly was looming large in the background.
In the midst of the Solicitor General's argument, the Justices were exploring the impact on the detainees' fate of the 1949 Geneva Convention, dealing with the rights of wartime prisoners. The discussion had moved into questions over how, if at all, detainees could bring their claims to protection under that Convention before a "military commission." Then Kennedy questioned whether detainees appearing before such a tribunal could challenge its very legitimacy. Clement said such a challenge could be made, but he accepted Scalia's point that this could only come after a "commission" had finished a trial -- thus barring any pre-trial challenge to the "commission" scheme itself.
Souter protested, saying he was not sure a "commission" could rule on "the very basic qauestion" of whether that entity was set up in a legal way. Breyer then jumped in, saying with fervor that the language of the Detainee Treatment Act did not support Clement's reading of it. But, Breyer went on, the contention that the Act had taken away the courts' power to decide any habeas challenge to detainees' situation would raise "the most terribly difficult question of whether Congress can constitutionally deprive the courts of jurisdiction in habeas cases" -- the suspension-of-the-writ question.
Shortly afterward, Breyer persisted, his voice tense, saying that the government's interpretation "inevitably raises the question whether the Act -- if not a suspension of habeas" was nevertheless unconstitutional if it meant that Congress had removed "the jurisdiction of the courts in any significant number of cases." Souter joined in, suggesting that the Court's interpretation of the Detainee Act should take into account the need to avoid the question of suspension of habeas. A moment later, Souter gravely observed that suspension of the writ was "just about the most significant act that the Congress of the United States can take." If, at the end of the day, Souter said, the Court must reach that constitutional issue of congressional power, "the answer may be that Congress did not intend to do it."
Soon after that exchange, Justice Kennedy sought to bring the argument back to the makeup of the "commissions." He wondered whether Clement was "going to spend any more time on the regularity" of those tribunals. Breyer chimed in to say that, if the President did have the power that Clement was claiming regarding the "commission" system, "the President can set up a commission and go to Toledo and arrest an immigrant and try him." Clement's response was to bring back the specter of 9/11. "This is a war," he said, and presidents have long had the power in wartime to order the trial of "classic war crimes."
(NOTE: Justice Scalia has said nothing publicly in response to a suggestion, by five retired admirals and generals taking part in the Hamdan case as amici, that he should not take part because of his remarks in Switzerland recently -- remarks that the retired officers said suggested he may have prejudged the case. As the Court prepared to hear the Hamdan case Tuesday, Scalia was seated, but then stood up. He did so, however, only to arrange the materials in front of him; he then sat own, silently indicating that he was participating.)

There are some good comments at the link. I'm looking for a link to the audio. I didn't listen to the argument, myself.

I was researching something else, and read the following comments in the Congressional Record. The comments are worth reading in full, and I won't recapitulate all of them here, in part because they touch not only on the Graham/Levin habeas matter, but also on the McCain torture amendment, and quite a few issues that orbit the handling of detainees in the twilight zone between military and criminal law.

The excerpt below is from a letter signed by one Erin Conata, covering the Democrat signatures that signify House agreement with the Conference Report. The letter was entered into the record by Mr. SKELTON.

Congressional Record - House - December 18, 2005
CONFERENCE REPORT ON H.R. 1815, NATIONAL DEFENSE AUTHORIZATION ACT
However, I am concerned that Senator McCain's language could be undercut by the Graham-Levin Amendment. This amendment was negotiated largely in a closed process by the White House and a select few Majority members. It addresses many aspects of the Combatant Status Review Tribunals and military commissions in Guantanamo Bay but there are serious questions about the procedures and they are currently being challenged in federal court. There are also questions about the Amendment's impact on our judicial system and law that's been in existence since the founding of our nation. I expect the courts will have a real challenge interpreting the Amendment's meaning. At the very least--the Graham-Levin Amendment should not apply retroactively or to any pending cases. ...
At least, as Senator LEVIN has emphasized, the Graham-Levin amendment provisions do not apply to or alter pending habeas cases. The Senate voted to remove language from the original Graham amendment that would have applied the habeas-stripping provision to pending cases, affirming that it did not intend such application. Further, under the Supreme Court's ruling in Lindh v. Murphy, 521 U.S. 320 (1997), the fact that Congress chose not to explicitly apply the habeas-stripping provision to pending cases means that the courts retain jurisdiction to consider these appeals. Finally, the effective date language in the original Graham-Levin amendment, and Senate passed Defense Authorization Bill (S. 1042 section 1092), was retained in the final negotiated language for the Conference Report, thereby adopting the Senate position that the habeas-stripping provision does not strip the courts of jurisdiction in pending cases.

Again, I urger reading the material in the record that is represented by my ellipses in the above excerpt. I cut at least five paragraphs from the letter, and those paragraphs discuss the interplay between military tribunals, Article III Courts, McCain's torture amendment and the Graham/Levin amendment.

From ScotusBlog ...

Swift responses to new law on detainees
12:37 PM | Lyle Denniston
Congress' 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.

Courtesy of ScotusBlog. Hamdan II "in the works" - whichever side loses the case at the District Court level will appeal the ruling. Of course, there is no guarantee that SCOTUS will eventually grant certiorari, they may deny cert and let the case stand however decided below.

Judge to review Hamdan case further
01:30 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

More "Hamdan II"

Hamdan's case: Longer list of constitutional issues
Lawyers 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.

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. ...

After pre-trial maneuvering, including a rejected request to be tried in DC District Court in light of the Supreme Court's Boumediene decision, Hamdan has been convicted on a charge of violation of 10 USC 925v(b)(25) - Providing Material Support for Terrorism; and has been acquitted on a charge of Conspiracy.

See Hamdan Convicted in Split Verdict at SCOTUSblog, and Hamdan found guilty by Guantanamo military commission jury at JURIST for more.

A July 25, 2008 LA Times story, Hamdan case is built on his own words, reports that Hamdan's boss (the head of Bin Laden's bodyguards) and an Al Qaeda errand boy arrested along with Hamdan were both captured and released by the US. I'm wondering why Hamdan's testimony wasn't good enough to convict at least the head of bin Laden's bodyguards, for providing material support.

The Hamdan case will go on through appeal, resulting in firming up the rules and parameters for trials under military commissions.

10 USC 950v - Military Commissions Act of 2006, Pub. L. 109-366, which was approved Oct. 17, 2006.

One of the arguments Hamdan made in order to get his case into an Article III Court was that the law is ex post facto, or not properly a military commission matter. Those arguments are certain to be litigated further.

10 USC 950p recites:

(a) Purpose.â€” The provisions of this subchapter codify offenses that have traditionally been triable by military commissions. This chapter does not establish new crimes that did not exist before its enactment, but rather codifies those crimes for trial by military commission.
(b) Effect.â€” Because the provisions of this subchapter (including provisions that incorporate definitions in other provisions of law) are declarative of existing law, they do not preclude trial for crimes that occurred before the date of the enactment of this chapter.

In Hamdan v. Rumsfeld, SCOTUS did not accept that conspiracy was a crime traditionally triable by military commission. No matter for Hamdan, his was acquitted of the Conspiracy charge.

The Material Support charge is arguably on even weaker ground (as being properly under the aegis of a military commission) than the Conspiracy charge.

Just a point of comparison, David Hicks was returned to Australia after he pled guilty to a charge of material support. His sentence was nine months imprisonment, served in Australia, and a yearlong â€œgagâ€ order.

A more detailed breakdown of the military commission verdict from Bobby Chesney.
Breakdown of the Convictions and Acquittals

Count 1: Conspiracy
Specification 1: conspiracy to commit a variety of offenses (attacks on civilians, etc.) - acquitted
Specification 2: conspiracy to commit murder in violation of the law of war by attacking US and coalition servicemen - acquitted (note that this specification was the subject of much news coverage yesterday, as it turned out that Judge Allred instructed the jury that the charge required proof that the conspiracy targeted "protected persons" (civilians or persons rendered hors de combat))
Count 2: Material Support
Specification 1: Providing himself as personnel to al Qaeda with knowledge or intent that this support would "be used for an act of terrorism" (a count analogous to 18 USC 2339A) - acquitted
Specification 2: Providing himself as personnel to al Qaeda, period (a count analogous to 18 USC 2339B, which unlike 2339A does not require any linkage to another offense) - CONVICTED
Specification 3: Providing al Qaeda with SA-7 surface-to-air missiles in November 2001, knowing they would be used for an act of terrorism (again along the lines of 2339A) - acquitted
Specification 4: Providing al Qaeda with SA-7 surface-to-air missiles in November 2001, period (again along the lines of 2339B) - acquitted
Specification 5: Providing support to al Qaeda through his service as a driver, knowing this would facilitate communications and planning for terrorist acts - CONVICTED
Specification 6: similar to Specification 5 - CONVICTED
Specification 7: Providing support to al Qaeda through service as a bodyguard, knowing this would facilitate communications and planning for terrorist acts CONVICTED
Specification 8: similar to Specification 7 - CONVICTED

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