03:43 PM | Lyle Denniston | Comments (0)
The D.C. Circuit Court has put off any action on an appeal by detainee Salim Ahmed Hamdan, until after the Supreme Court decides other Guantanamo prisoners' cases next Term. In a one-paragraph order issued Tuesday, the Circuit Court, acting on its own, deferred a petition for initial en banc review of Hamdan v. Gates (Circuit docket 07-5042), "pending further order of the court."
Hamdan has an appeal pending there, along with his two requests pending at the Supreme Court seeking review by the Justices ahead of review in the Circuit Court (Supreme Court dockets 06-1169, rehearing request, and 07-15, new petition for review). Attorneys for Hamdan notified the Supreme Court on Wednesday of the Circuit Court deferral in this letter, with the Circuit Court order attached. Hamdan's challenge is based on arguments that he has a legal right to challenge the military commission that is schedule to try him on war crimes charges, and to pursue that challenge in a habeas case despite Congress' move to scuttle all detainee habeas claims.
The Circuit Court told both sides to file motions to govern further proceedings 30 days after the Supreme Court decides the cases of Boumediene v. Bush (06-1195) and Al Odah v. U.S. (06-1196), granted review by the Justices on June 29.
When the Justice Department on July 20 urged the Supreme Court not to hear Hamdan's new appeal, it argued that the Court should await a decision by the D.C. Circuit in the case pending there. The issues Hamdan raises both at the Circuit Court and in the Supreme Court, the government brief said, "would benefit from the normal decisional process that a case undergoes before receiving plenary review by this Court." In the wake of the Circuit Court's deferral of the Hamdan appeal there, it appears that there would be nothing for the Supreme Court to review until some time after the Supreme Court decides Boumediene and Al Odah.
Hamdan's counsel has contended that the Justices should go ahead and grant review of his new case, on a schedule parallel to that being followed in Boumediene and Al Odah.