U.S. opposes en banc review of Hamdan

Thursday, June 28, 2007

U.S. opposes en banc review of Hamdan

10:45 PM | Lyle Denniston | Comments (0)

The Justice Department on Thursday urged the D.C. Circuit to resist a plea that it sit en banc and overturn its recent ruling putting an end to Guantanamo Bay detainees' habeas challenges to their confinement. Responding to that Court's request for its views on a proposal for initial en banc review of Hamdan v. Gates (07-5042), the Department said the Feb. 20 decision was right, has been twice left intact by the Supreme Court, and should not be revisited after only five months. The response can be found at this link.

Earlier, the government had urged the Circuit Court to go ahead and dismiss the appeal of Salim Ahmed Hamdan, who is seeking to challenge his detention and the war crimes charges he expects to face before a "military commission" at Guantanamo. This was based on the Circuit Court's February ruling in two packets of detainee cases (the lead case was Boumediene v. Bush) -- a ruling that the Supreme Court declined to review (once in those packets of cases, and once in an earlier petition by Hamdan).

Because Hamdan regards the Circuit Court ruling as so broad that his pending appeal there would be futile before a three-judge panel, he asked the Circuit Court to take his case initially en banc. That is the plea the government opposed on Thursday.

It is clear, the Department contended, that the Military Commissions Act of 2006 wipes out Hamdan's habeas case. If he has any complaint about his detention as an "enemy combatant," it added, he can raise that in a separate new proceeding in the D.C. Circuit under the Detainee Treatment Act of 2005.

Its opposition recites many of the same arguments that the Department had put before the Circuit Court in the Boumediene cases.

Meanwhile, the Supreme Court may announce on Friday its reaction to a plea by the Boumediene and Al Odah v. U.S. detainees to reconsider its April 2 denial of review of the Circuit Court ruling scuttling their challenges under the MCA. Two rehearing petitions (in 06-1195 and 06-1196) were considered at the Court's final Conference of the Term earllier Thursday, according to the Court docket. Chief Justice John G. Roberts, Jr., said on Thursday morning that orders resulting from that Conference would be made public at 10 a.m. Friday.