Senators Kyl and Graham's Hamdan v. Rumsfeld Scam: The Deceptive Amicus Brief They Filed in the Guantanamo Detainee Case

Supreme Court blocks war crimes trials for Guantanamo detaineesBy GINA HOLLAND Associated Press Writer (AP) - WASHINGTON-The Supreme Court ruled Thursday that President George W. Bush overstepped his authority in ordering military war crimes trials for Guantanamo Bay detainees.

By JOHN W. DEAN ----
Wednesday, Jul. 05, 2006

Last week, the Supreme Court issued its historic decision in Hamdan v. Rumsfeld. There, it dealt a substantial blow to the Bush/Cheney Administration's plans for the treatment of detainees at Guantanamo and, potentially, elsewhere as well - ruling out, for instance, the option of using military commissions without due process to try detainees.

The decision itself has been widely discussed. Less widely discussed, however, has been its backstory.

The Bush/Cheney Administration has been doing everything possible to keep its treatment of purported terrorist detainees out of the federal courts, particularly the Supreme Court. To assist the Administration, Republican Senators Lindsey Graham of South Carolina and Jon Kyl of Arizona engaged in a blatant scam that was revealed during the briefing of Hamdan.

Senators Graham and Kyl not only misled their Senate colleagues, but also shamed their high offices by trying to deliberately mislead the U.S. Supreme Court. Their effort failed. I have not seen so blatant a ploy, or abuse of power, since Nixon's reign.

To understand their ruse, a bit of background information about both the Hamdan case and the Detainee Treatment Act is necessary.

The Chronology Of The Hamdan Case

Salim Ahmed Hamdan is undoubtedly a bad fellow. Indeed, he is claimed to have once served as Osama bin Laden's driver and bodyguard. Hamdan was captured by tribal forces and turned over to the U.S. Military in November 2001, during the hostilities in Afghanistan against the Taliban. In June 2002, Hamdan was sent to Guantanamo.

In July 2003, the President designated Hamdan for trial by military commission, and in December 2003, Hamdan was given military counsel. In February 2004, Hamdan's attorneys filed an action under the Uniform Code of Military Justice (UCMJ) asking that formal charges be made against Hamdan, and that he be given a speedy trial. The U.S. military, however, held that the UCMJ did not apply.

Next Hamdan's attorney filed a petition for habeas corpus in federal court, to test the legality of his detention. That petition made its way from the state of Washington, where it was filed, to Washington, DC.

On November 8, 2004, Judge James Robertson of the U.S. District Court for the District of Columbia (a Clinton appointee, who had been active in civil rights) ruled that both the UCMJ and Common Article 3 of the Geneva Conventions were applicable, so he stayed the proceedings of the military commission that had taken jurisdiction of Hamdan. The government appealed immediately to the U.S. Court of Appeals for the District of Columbia. There, on July 15, 2005, a three-judge panel (which included the future Chief Justice John Roberts) ruled in the government's favor. But Hamdan's attorney filed a petition for review by the U.S. Supreme Court. And the Court took the case on November 7, 2004.

Subsequently, Congress passed the Detainee Treatment Act (DTA), and on December 30, 2005, President Bush signed it. Then, on February 13, 2006, the government filed an extraordinary motion before the Supreme Court, calling for the Court to dismiss Hamdan's case on the ground that the DTA had stripped the High Court of jurisdiction of any and all habeas corpus actions emanating from the detainees at Guantanamo.

In support of the government's motion, Senators Kyl and Graham filed an amicus brief. There, they brazenly attempted to hoodwink the Court regarding the actions of Congress in adopting the DTA. (It is not clear if their attorney, Jeffrey Lamken, a distinguished and highly able appellate practitioner, was privy to their scheme. But I would be at a loss to explain how he might have missed it.)

The Passage of the Detainee Treatment Act >>>cont

MICHAEL C. DORF
The Hidden--and Obvious--Lessons in the Supreme Court's Divided Ruling Invalidating Military Commissions FindLaw columnist and Columbia law professor Michael Dorf breaks down the key rulings in the Supreme Court's recent blockbuster decision in Hamdan v. Rumsfeld, and also comments on less obvious ways the decision may turn out to be important. In addition, Dorf explains why the decision may not, to some extent, be as momentous a victory for civil liberties and human rights as it seems. Among other points, Dorf notes that indefinite detention without trial is still a possibility, and that some places of detention abroad (though not Guantanamo) may be outside federal court habeas corpus jurisdiction, meaning protections may be able to be evaded by sending detainees there. Friday, Jun. 30, 2006