No Easy Answers

Friday, July 18, 2008

Hamdan To be Tried in Military Court - Judge Robertson


Excellent summary by Lyle Denniston at SCOTUSblog.
"Judge: “World’s eyes on Guantanamo”; Lawyers: no appeal now


SALIM AHMED HAMDAN,               :
          Plaintiff,              :
     v.                           : Civil Action No. 04-1519 (JR)
ROBERT GATES,                     :
          Defendant.              :

                          MEMORANDUM ORDER

          Salim Ahmed Hamdan seeks a preliminary injunction that
would stop his trial by military commission pending federal court
review of the Military Commission's determination that he is an
unlawful enemy combatant and of his claims that the trial will
violate the Constitution and the Geneva Conventions.

                           I. Background

A. Procedural History

          Hamdan is a Yemeni national.     He was captured by
militia forces in Afghanistan in November 2001 and turned over to
the United States military.   Since June 2002, he has been held at
the Defense Department's detention facility at Guantanamo Bay.
One year into his detention at Guantanamo, in July 2003, the
President declared him eligible for trial by military commission
on unspecified charges.   In April 2004, Hamdan filed a petition
for mandamus or habeas corpus in the United States District Court
for the Western District of Washington.      On July 13, 2004, two
years and eight months into his detention, Hamdan was formally
charged with single count of conspiracy "to commit . . . offenses
triable by military commission."    In August 2004, his habeas
petition was transferred to the District of Columbia and randomly
assigned to me.

            Around the same time, in July 2004, in compliance with
the Supreme Court's decision in Hamdi v. Rumsfeld, 542 U.S. 507
(2004), the Deputy Secretary of Defense established Combatant
Status Review Tribunals (CSRTs) to determine whether detainees at
Guantanamo are "enemy combatants."      Hamdan was classified as a
enemy combatant by a CSRT on October 2, 2004, and designated for
trial before a military commission.

            On November 8, 2004, I granted Hamdan's habeas
petition.    Hamdan v. Rumsfeld, 344 F. Supp. 2d 152 (D.D.C.
2004). ^1   The Supreme Court generally sustained my decision, ^2
holding that Hamdan could not be lawfully tried by a military
tribunal convened only by executive order and that the structure
and procedures of the military commission then in place violated
both the Uniform Code of Military Justice and the Geneva

       Contrary to the government's insistence that habeas is
solely concerned with release, Opp. Memo. at 16-17, this grant of
a petition for habeas corpus did not involve Hamdan's release.
       The Court ignored my conclusion that Hamdan should be put
before a tribunal that would determine whether he was a prisoner
of war.
                                - 2 -

Conventions.    Hamdan v. Rumsfeld, 126 S. Ct. 2749, 2759 (2006).
Four justices, in a plurality opinion, also concluded that the
only offense Hamdan was then charged with � conspiracy � was not
a violation of the law of war and thus not triable by military
commission.    Id. at 2780.

          Four justices (not the same four) noted in Hamdan that
"[n]othing prevents the President from returning to Congress to
seek the authority he believes necessary" in order lawfully to
try enemy combatants before a military tribunal.      Id. at 2799.
The President accepted that invitation and, in October 2006,
Congress enacted the Military Commissions Act, Pub. L. No.
109-366, 120 Stat. 2600.      In Section 3(a)(1) of that Act,
codified at 10 U.S.C. � 948d(a), Congress gave military
commissions jurisdiction to try "alien unlawful enemy

          Under the Act, a military commission is made up of at
least five officers, 10 U.S.C. �� 948i, 948m, and is presided
over by a military judge, 10 U.S.C. � 948j.      Many of the
procedures for an MCA commission parallel those that had been
established by the President's order.      Before and after passage
of the MCA, the applicable rules have required that the defendant
be represented by appointed military counsel and have the ability
to retain private counsel (as Hamdan has), that he be informed of
the charges against him, that he be presumed innocent until

                                  - 3 -

proven guilty beyond a reasonable doubt, that he receive (with
important qualifications) the evidence that the prosecution
intends to produce at trial and any known exculpatory evidence,
that he not be required to testify at trial, and that he be
allowed to present evidence and cross-examine witnesses.    32
C.F.R. �� 9.3 - 9.6; 10 U.S.C. �� 948k, 949a, 949c, & 949l.

          The procedures codified by the MCA also include
significant improvements.   Previously, the accused could be
excluded from the proceedings, and evidence admitted against him
without his knowledge.   32 C.F.R. �� 9.6(b)(3), (d)(5).   The MCA
repairs that problem by requiring the presence of the defendant
unless, after being warned, he persists in conduct that justifies
his exclusion in order to protect the safety of others or to
avoid disrupting the proceedings.   10 U.S.C. �� 949d(b), (e).
While the MCA adopts fairly permissive standards allowing for the
use of hearsay and requires the party opposing admission to prove
unreliability, whenever the government intends to use hearsay, it
must notify the defendant "sufficiently in advance to provide the
adverse party with a fair opportunity to meet the evidence" and
must explain "the particulars of the evidence (including
information on the general circumstances under which the evidence
was obtained)."   10 U.S.C. � 949a(b)(2)(E)(ii).

          The curtailment of confrontation rights through the
broad allowance of hearsay is one of a number of ways in which

                               - 4 -

MCA commissions depart from standards that would be applied in
either U.S. criminal trials or courts-martial.   Another
departure, and a startling one, is that under 10 U.S.C.
� 948r(c), evidence obtained by "coercion" may be used against
the defendant so long as the military judge decides that its
admission is in the interest of justice and that it has
"sufficient" probative value.   Compare Chambers v. Florida, 309
U.S. 227 (1940) (reversing conviction and excluding evidence
obtained through five days of coercive interrogation).

           That said, one of the most substantial improvements
under the MCA is in the structure for review of convictions.
Before the MCA, the President himself, or the Secretary of
Defense acting at his direction, was vested with final reviewing
authority.   There was no provision for independent review outside
the military's chain of command.   Under the MCA, defendants
convicted by military commission are afforded three levels of
appellate review.   A defendant may first appeal his conviction to
a Court of Military Commission Review (CMCR), comprised of at
least three military judges or civilians with "comparable
qualifications" appointed by the Secretary of Defense.     10 U.S.C.
� 950f.   After exhausting (or waiving) proceedings before the
CMCR, the defendant has an appeal of right to the D.C. Circuit,
which has "exclusive jurisdiction to determine the validity of a
final judgment rendered by a military commission."   10 U.S.C.

                                - 5 -

� 950g.    The Court of Appeals has jurisdiction to review all
"matters of law" in order to consider "whether the final decision
was consistent with the standards and procedures specified" in
the MCA and with "the Constitution and laws of the United
States."    10 U.S.C. �� 950g(a)-(c).   Finally, 10 U.S.C. � 950g(d)
provides that the Supreme Court may review the final judgment of
the Court of Appeals on a writ of certiorari, in accordance with
28 U.S.C. � 1257.

            Except for its provision "channeling" appellate review
of final judgments to the D.C. Circuit, the MCA was clearly
designed to keep enemy combatants away from the federal courts:
section 7 of the MCA unambiguously stripped Article III courts of
their jurisdiction to consider habeas petitions filed by enemy
combatants.    It was in compliance with Section 7 that I dismissed
Hamdan's petition for habeas corpus on December 13, 2006:
Congress had stripped federal courts of their statutory habeas
jurisdiction, and I thought that precedent required that I refuse
a "constitutional" writ of habeas corpus to an alien detained at
Guantanamo Bay.    Hamdan v. Rumsfeld, 464 F. Supp. 2d 9 (D.D.C.
2006).    That belief turned out to be incorrect.   The Supreme
Court, in Boumediene v. Bush, 128 S. Ct. 2229 (2008), decided
last month that Section 7 was unconstitutional.     The Court held
that the Suspension Clause, Art. I, � 9, cl. 2 of the
Constitution, "has full effect at Guantanamo Bay," and that the

                                - 6 -

Boumediene petitioners "are entitled to the privilege of habeas
corpus to challenge the legality of their detention."    Id. at

            While these developments were moving forward in
Congress and the courts, Hamdan's military commission moved
forward, as well, although not without difficulty.    On April 5,
2007, the Convening Authority authorized two new charges against
Hamdan, both of which had recently been "codified" under the MCA.
Charge I was, and is, for conspiracy in violation of 10 U.S.C.
� 950v(b)(28); Charge II is for providing material support for
terrorism in violation of 10 U.S.C. � 950v(b)(25).    On June 4,
2007, the military judge presiding over Hamdan's Commission
dismissed those charges, for lack of jurisdiction, because Hamdan
had been classified by CSRT only as an "enemy combatant" and not
as an "unlawful enemy combatant."    The government moved for
reconsideration and for the military judge to hear evidence and
decide for himself whether Hamdan was lawfully triable under the
MCA.    The motion was granted and, as a result of hearings held on
December 5 and 6, 2007, the military judge issued an opinion
finding Hamdan to be an unlawful enemy combatant.    In that same
opinion, issued on December 19, 2007, the judge also rejected a
number of constitutional arguments � Hamdan's ex post facto, bill
of attainder and equal protection challenges � relying on the
D.C. Circuit's now-vacated opinion in Boumediene v. Bush, 476

                                - 7 -

F.3d 981 (D.C. Cir. 2007), which had held that detainees at
Guantanamo have no cognizable constitutional rights.   Id. at 992.

          Hamdan's trial by military commission is scheduled to
begin on July 21, 2008.

B. Hamdan's Motion for Preliminary Injunctive Relief

          Hamdan argues that the Commission lacks personal
jurisdiction over him and lacks subject matter jurisdiction over
the crimes for which he has been charged.

           As to personal jurisdiction, Hamdan begins with the
unassailable fact that the MCA limits trial by military
commission to those who have been determined to be unlawful enemy
combatants.   Although he was so classified by the Commission in
December 2007, Hamdan argues that the Commission may not proceed
against him based on a status determination that has not been
reviewed by a federal court.   Under Hamdan's reading of
Boumediene, detainees' now-recognized constitutional right to
challenge the legality of their detention in habeas means that
trial by military commission cannot proceed before there has been
a full habeas hearing in federal court to test a finding of
unlawful enemy combatancy, whether made by a CSRT or by a
military commission.

          As to subject matter jurisdiction, Hamdan argues that
the Commission lacks power to proceed because the charges filed

                               - 8 -

against him violate the Constitution's ex post facto, define and
punish, and bill of attainder clauses.   He also asserts that the
MCA violates the equal protection component of Fifth Amendment
due process by subjecting only aliens to trial by military
commission, and that the Commission's potential allowance of
certain kinds of hearsay evidence and evidence obtained through
coercion will violate his Geneva Convention and due process

            The government argues that as a result of a provision
in Section 3(a)(1) of the Military Commissions Act, codified at
10 U.S.C. � 950j(b), this Court lacks jurisdiction to decide
Hamdan's claims and that, even if jurisdiction does exist, "the
comity-based abstention doctrine recognized in [Schlesinger v.
Councilman, 420 U.S. 738 (1975)] . . . require[s] this Court to
stay its hand until the completion of the military commission
process."   Opp. Memo. at 9.   Aside from any claims based on the
Geneva Conventions, the government stresses that each claim that
Hamdan has raised is "fully cognizable on direct review [by the
D.C. Circuit] if he is convicted by military commission." ^3  Id.
at 22.

       The MCA purports to bar defendants from asserting defenses
or invoking rights based on the Geneva Conventions. See 10 U.S.C.
� 948b(g). Should Hamdan be convicted, nothing in the MCA bars
him from asserting on appeal, as he does in this motion, that �
948b(g) violates the Supremacy Clause and the separation of
powers. See United States v. Klein, 80 U.S. 128 (1872).

                                - 9 -

                           II. Analysis

A. It is not necessary to decide Hamdan's claim that Section
3(a)(1) of the MCA is an unconstitutional suspension of habeas

         Except as otherwise provided in this chapter
         and notwithstanding any other provision of law
         (including section 2241 of title 28 or any
         other habeas corpus provision), no court,
         justice, or judge shall have jurisdiction to
         hear or consider any claim or cause of action
         whatsoever, including any action pending on or
         filed after the date of the enactment of the
         Military Commissions Act of 2006, relating to
         the prosecution, trial, or judgment of a
         military commission under this chapter,
         including challenges to the lawfulness of
         procedures of military commissions under this

10 U.S.C. � 950j(b).   Hamdan insists that this provision does not
bar challenges to the Commission's jurisdiction, even though on
its face it is plainly a jurisdiction-stripping provision. ^4
Instead, he argues, it "merely codifies, in the context of the
MCA, the prudential rule that civilian courts lack supervisory
jurisdiction over military tribunals."    Pet.'s Memo. at 14.
Hamdan's strained reading of � 950j(b) cannot be squared with the
language that withdraws jurisdiction over "any claim or cause of
action whatsoever . . . relating to prosecution, trial or
judgment of a military commission," and it ignores the context of
the provision within the MCA, which was intended to deprive the
federal courts of all habeas jurisdiction over Guantanamo.

        The government euphemistically calls this section a
"review channeling provision."

                              - 10 -

           Hamdan next argues that, if and to the extent that
� 950j(b) does strip this Court of jurisdiction, either to
challenge the MCA tribunal's jurisdiction or to deal with his
other constitutional claims about the Commission, it "violate[s]
the Suspension Clause by precluding access to the Great Writ
without providing an adequate, alternative remedy."    Pet.'s Memo.
at 15.

           That argument presents important constitutional
questions that I need not, and therefore will not, attempt to
answer.   "If there is one doctrine more deeply rooted than any
other in the process of constitutional adjudication it is that we
ought not to pass on questions of constitutionality . . . unless
such adjudication is unavoidable."     Spector Motor Service, Inc.
v. McLaughlin, 323 U.S. 101, 105 (1944).    The Supreme Court did
not abstain from the Suspension Clause issue in Boumediene, but
the Supreme Court is the Supreme Court.    Moreover, the context in
which the issue is presented here is quite different.

           First, the application of habeas corpus that Hamdan
wishes to advance here is different from the one recognized in
Boumediene.   Boumediene dealt with a challenge to detention.
Hamdan insists in his reply brief that he also challenges his
detention, but the gist of the challenge presented in this motion
for preliminary injunction is to the jurisdiction of the Military
Commission, an issue farther removed from the "historical core"

                              - 11 -

of the Writ than was the case in Boumediene.    See INS v. St. Cyr,
533 U.S. 289, 301 (2001)("At its historical core, the writ of
habeas corpus has served as a means of reviewing the legality of
executive detention, and it is in that context that its
protections have been strongest.") (emphasis added).

          Second, unlike the petitioners in Boumediene, Hamdan
has had a CSRT and a two-day jurisdictional hearing before the
Commission, at which he was represented by counsel, and will now
have a fully adversarial trial that will provide a further test
of the premise of his detention.    As Justice Kennedy observed in
Boumediene, "habeas corpus review may be more circumscribed if
the underlying detention proceedings are more thorough than they
were here."   128 S. Ct. at 2270.   The Boumediene petitioners'
right to immediate habeas hearings was tied to the fact that
"there has been no trial by a military commission for violations
of the laws of war" nor had there been "a rigorous adversarial
process to test the legality of their detention."    Id. at 2259-

          Unlike the detainees in Boumediene, Hamdan has been
informed of the charges against him and guaranteed the assistance
of counsel.   He has been afforded discovery.   He will be able to
call and cross-examine witnesses, to challenge the use of
hearsay, and to introduce his own exculpatory evidence.    He is
entitled to the presumption of innocence.    And, most importantly,

                              - 12 -

if Hamdan is convicted, he will be able to raise each of his
legal arguments before the D.C. Circuit, and, potentially, the
Supreme Court.

           The question of whether section � 950j(b) violates the
Suspension Clause is both novel and complex.    It is by no means
controlled by the four corners of Boumediene.    What must be
considered is "whether there are suitable alternative processes
in place to protect against the arbitrary exercise of government
power."   Id. at 2275.   "What matters is the sum total of
procedural protections afforded to the detainee at all stages,
direct and collateral."    Id. at 2269.

           As an example of the complexity of the question
presented by Hamdan's Suspension Clause challenge, and the
inadvisability of attempting to decide it now, consider that a
traditional function of a habeas court is to "allow[] prisoners
to introduce exculpatory evidence that was either unknown or
previously unavailable to the prisoner" at the time that the
Executive made the decision to detain.    Id. at 2267.   Because the
MCA provides that the D.C. Circuit's jurisdiction on direct
review is limited to "matters of law," it appears that the Court
of Appeals would be barred from considering a claim of innocence
based on previously unavailable evidence.    Whether the
constitution entitles Hamdan to raise such a claim collaterally,
in habeas, is an entirely speculative question at this point,

                               - 13 -

first, because such claims may not actually arise, and, second,
because the question cannot be answered without accessing how
much procedure Hamdan did, in fact, actually receive.   Compare
Boumediene, 128 S. Ct. at 2272 ("an opportunity for the detainee
to present relevant exculpatory evidence that was not made part
of the record in the earlier proceedings" is "constitutionally
required in this context" where "the underlying detention
proceeding lack[s] the necessary adversarial character") with In
re Yamashita, 327 U.S. 1, 8 (1946) ("[O]n application for habeas
corpus we are not concerned with the guilt or innocence of the
petitioners.   We consider here only the lawful power of the
commission to try the petitioner for the offense charged.").

B. Abstention is appropriate � or required � as to the merits of
Hamdan's claims.

          Hamdan's focus now is not on post-trial habeas, of
course. What he seeks is pre-trial relief to avoid being
subjected to a trial that, in his submission, will be unlawful.
His claims of unlawfulness, however, are all claims that should
or must be decided in the first instance by the Military
Commission, and then raised before the D.C. Circuit, as
necessary, on appeal.   The Supreme Court's decision in Councilman
requires federal courts to give "due respect to the autonomous
military judicial system created by Congress."   New v. Cohen, 129
F.3d 639, 643 (D.C. Cir. 1997).   Councilman involved court-

                              - 14 -

martial proceedings against a U.S. service member, to be sure,
and not a military commission, but its central rationale is
applicable here.    Councilman requires the courts to respect the
balance that Congress has struck in creating a military justice
system, "a critical element of which is the Court of Military
Appeals consisting of civilian judges completely removed from all
military influence or persuasion."      420 U.S. at 758.
Considerations of comity were inapplicable when Hamdan's petition
was first before me in 2004 because, as I said then, "whatever
can be said about the Military Commission established under the
President's Military Order, it is not autonomous, and it was not
created by Congress."    Hamdan, 344 F. Supp. 2d at 157.    With the
enactment of the MCA, that is no longer the case: "Hamdan is to
face a military commission . . . designed . . . by a Congress
that . . . act[ed] according to guidelines laid down by the
Supreme Court."    Hamdan, 464 F. Supp. 2d at 18.    Additionally,
because the MCA gives Hamdan an appeal of right to an Article III
court, direct review will be even more "removed from all military
influence or persuasion" than in Councilman.

          The long-standing exception to Councilman abstention is
that defendants may raise, pre-trial, "substantial arguments that
a military tribunal lacks personal jurisdiction over them,"
Hamdan, 126 S. Ct. at 2772 n.20, but I find no "substantial
argument" about jurisdiction in this case.      Hamdan urges that the

                               - 15 -

military judge "made a finding of unlawful enemy combatancy in
December 2007 based on a misapplication of relevant law," by
failing to address the merits of his constitutional arguments, by
misapplying the Geneva Conventions, and by denying him the
ability to call certain exculpatory witnesses.    Pet.'s Memo. at
24.    But Hamdan's summary assertion of these claims does not
automatically make his jurisdictional challenge a substantial
one.    Hamdan does not explain how the applicable jurisdictional
standards contained in 10 U.S.C. � 948a(1) were violated by the
military judge's application of law to the facts adduced at the
December 2007 jurisdictional hearing.    The absence of a full-
scale habeas hearing as to Hamdan's classification as an unlawful
enemy combatant does not, by itself, raise a substantial question
about the Commission's jurisdiction to proceed.    Moreover, under
the D.C. Circuit's recent decision in Khadr v. United States, No.
07-1405, 2008 U.S. App. LEXIS 13285 (June 20, 2008), all of
Hamdan's jurisdictional arguments can be addressed, if necessary,
following final judgment in accordance with � 950g.    Where both
Congress and the President have expressly decided when Article
III review is to occur, the courts should be wary of disturbing
their judgment.

                               - 16 -


           I find that Hamdan's chances of prevailing on the
merits of his prayer for injunctive relief are uncertain; that he
has shown no public interest reason for an injunction, see Khadr,
2008 U.S. App. LEXIS at *15; that the disruption that would be
caused by a last-minute delay of his trial would be significant;
and that the irreparable injuries he asserts do not outweigh the
other preliminary injunction factors.

           The eyes of the world are on Guantanamo Bay.   Justice
must be done there, and must be seen to be done there, fairly and
impartially.   But Article III judges do not have a monopoly on
justice, or on constitutional learning.    A real judge is
presiding over the pretrial proceedings in Hamdan's case and will
preside over the trial.   He will have difficult decisions to
make, as judges do in nearly all trials.    The questions of
whether Hamdan is being tried ex post facto for new offenses,
whether and for what purposes coerced testimony will be received
in evidence, and whether and for what purpose hearsay evidence
will be received, are of particular sensitivity.    If the Military
Commission judge gets it wrong, his error may be corrected by the
CMCR.   If the CMCR gets it wrong, it may be corrected by the D.C.
Circuit.   And if the D.C. Circuit gets it wrong, the Supreme
Court may grant a writ of certiorari.

                              - 17 -

          The motion for preliminary injunction, [Dkt. # 92], is

                                    JAMES ROBERTSON
                              United States District Judge

                             - 18 -

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