Hamdan, Boumediene, and Al Odah back at SCOTUS; Commission denies reconsideration of dismissal

SCOTUS Detainee Cases

News on several fronts. Last Friday, June 29th, SCOTUS reversed its denial of cert in both the Boumediene v. Bush (06-1195) and Al Odah v. U.S. (06-1196) cases, saying :

The petitions for rehearing are granted. The orders entered April 2, 2007, denying the petitions for writs of certiorari are vacated. The petitions for writs of certiorari are granted. The cases are consolidated and a total of one hour is allotted for oral argument.

SCOTUS reversing a denial of cert, then granting rehearing and new argument, reportedly has not occurred since Hickman v. Taylor, 329 U.S. 495 (1947).

The Court also noted that due to pending decisions in the U.S. Court of Appeals for the District of Columbia Circuit, supplemental briefings would be ordered upon any decisions issued in Bismullah, et al., v. Gates (06-1197) and Parhat, et al., v. Gates(06-1397). Boumediene and Al Odah present the following issues for review (Solicitor General’s reply HERE and Boumediene and Al Odah replies HERE and HERE ):

Boumediene

1. Whether the Military Commissions Act of 2006, Pub. L. No. 109-366, 120 Stat. 2600, validly stripped federal court jurisdiction over habeas corpus petitions filed by foreign citizens imprisoned indefinitely at the United States Naval Station at Guantanamo Bay.

2. Whether Petitioners’ habeas corpus petitions, which establish that the United States government has imprisoned Petitioners for over five years, demonstrate unlawful confinement requiring the grant of habeas relief or, at least, a hearing on the merits.

Al Odah

1. Did the D.C. Circuit err in relying again on Johnson v. Eisentrager, 339 U.S. 763 (1950), to dismiss these petitions and to hold that petitioners have no common law right to habeas protected by the Suspension Clause and no constitutional rights whatsoever, despite this Court’s ruling in Rasul v. Bush, 542 U.S. 466 (2004), that these petitioners are in a fundamentally different position from those in Eisentrager, that their access to the writ is consistent with the historical reach of the writ at common law, and that they are confined within the territorial jurisdiction of the United States?

2. Given that the Court in Rasul concluded that the writ at common law would have extended to persons detained at Guantanamo, did the D.C. Circuit err in holding that petitioners’ right to the writ was not protected by the Suspension Clause because they supposedly would not have been entitled to the writ at common law?

3. Are petitioners, who have been detained without charge or trial for more than five years in the exclusive custody of the United States at Guantanamo, a territory under the plenary and exclusive jurisdiction of the United States, entitled to the protection of the Fifth Amendment right not to be deprived of liberty without due process of law and of the Geneva Conventions?

4. Should section 7(b) of the Military Commissions Act of 2006, which does not explicitly mention habeas corpus, be construed to eliminate the courts’ jurisdiction over petitioners’ pending habeas cases, thereby creating serious constitutional issues?

Hamdan also reappeared at SCOTUS, with a new petition for review. The Hamdan petition presents the following issues:

1. Do detainees at the Guantanamo Bay Naval Base in Cuba have access to habeas corpus under the Constitution or by statute?

In addition, this case presents two further questions, which make it a logical and necessary companion to Boumediene and Al Odah:

2. Is the Military Commissions Act of 2006 (”MCA”), which purports to strip federal courts of habeas jurisdiction with respect to Guantanamo Bay detainees, unconstitutional because it violates separation of powers, the Bill of Attainder Clause, and Equal Protection guarantees?

3. Even if the MCA validly withdraws habeas jurisdiction over petitions filed by individuals detained as alleged enemy combatants, is the petitioner in this case, who faces a criminal prosecution before a military tribunal and sentence of life imprisonment, nevertheless protected by fundamental rights secured by the Constitution, including the right to challenge the jurisdiction of such a tribunal via the writ of habeas corpus?

Military Commissions Developments: Khadr reconsideration

On another front, COL Brownback, the Army judge that dismissed the military commission against Omar Khadr, on Friday (29 June 07) denied the prosecution’s petition for reconsideration. COL Brownback’s order is HERE. (gratis SCOTUSblog; I note that the official Military Commissions website seems to have not updated primary source materials for some time now.)

The defense did not respond to the prosecution’s motion for reconsideration. COL Brownback determined that the prosecution had “produced nothing . . . to show that the facts have changed or that the law has changed since the Commission made its ruling on 4 June 2007.” A.O. discussed that ruling HERE.

The Government, in its reconsideration petition, argued that it did not have “proper opportunity to brief the matter, argue it, and to present evidence.” The judge noted that a copy of the trial script had been sent to both sides, and the script, unused by the prosecution, laid out language allowing the prosecution to present its evidence of a CSRT determination–of course, as noted in the dismissal and our previous post, there was none. The judge also noted that the prosecution presented argument on jurisdiction, but made no “formal offer of proof” concerning any of the evidence the prosecution suggests now could have proven jurisdiction.

The judge went further and ruled on the merits of the government’s motion. COL Brownback again asserted that the commission cannotserve as “another competent tribunal” for purposes of finding jurisdiction. Moreover, the judge asserted that “it would appear that the government will have to prove beyond reasonable doubt at trial facts which could establish that an accused was an unlawful enemy combatant,” and that the Military Commissions Act (MCA) requires that determination prior to any referral of charges. At length, then, the judge goes back and restates his findings in his original order of 4 June 07 dismissing the case, reaffirming that the failure to present evidence that Khadr was an “unlawful” combatant was fatal to the case.

Thanks to SCOTUSblog for primary source documents.

Lime