Hamdan’s second challenge fails
on Jun 25, 2011 at 2:44 pm
Salim Ahmed Hamdan, a Yemeni national who won a high-profile Supreme Court challenge to a war crimes tribunal set up by presidential order, has failed in an attempt to undo a replacement tribunal created by Congress. On Friday night, a military appeals court — the U.S. Court of Military Commission Review — upheld the new trial system at Guantanamo Bay, and found no flaw in Hamdan’s guilty verdict.
The 86-page unanimous ruling (found here) can be reviewed next in civilian courts — first, the D.C. Circuit Court and then, if the Justices accept it, the Supreme Court. After being sentenced to six-and-a-half years in military prison, Hamdan was sent home to Yemen, and was later released there. His case was taken to the military appeals court by his U.S. lawyers.
The decision marked the first time that the military court had reviewed a conviction at Guantanamo under the “military commission” system that Congress enacted in 2006.  That commission system replaced one, set up by President George W. Bush, by executive order. In 2006, the Supreme Court found that tribunal unconstitutional in a major ruling (Hamdan v. Rumsfeld) that appeared to limit presidential authority in the so-called “war on terrorism.” Congress responded quickly with the new system. Hamdan was the first to have a full-scale trial in a system that has been plagued with repeated difficulties.
The commission system at Guantanamo is the one the Obama Administration has chosen for trials of terrorism suspects held at the U.S. Navy prison on the island of Cuba, now that Congress has blocked trials in civilian courts in the U.S. of any of those prisoners — including the alleged plotters of the Sept. 11, 2001, terrorist attacks
A key facet of the new decision is the narrow interpretation the seven-judge appeals court gave to the Supreme Court’s 2008 decision in Boumediene v. Bush, creating a constitutional right for Guantanamo detainees to challenge their continued confinement in U.S. civilian courts.  The Boumediene ruling, it concluded, only established that right of access to the courts.
Thus, the appeals court found that the Supreme Court had not created any guarantee of equal treatment of non-citizens and citizens. The Guantanamo commissions were given authority to try only non-citizens, and Hamdan’s lawyers contended that that violated the guarantee of legal equality that the Fifth Amendment’s due process clause provides.
Hamdan, whom military prosecutors said had been a personal driver for the late al Qaeda leader, Osama bin Laden, in Afghanistan, was also accused of providng military-type support to al Qaeda forces, and was said to have been a sympathizer for  the terrorist actions that al Qaeda carried out.Â
Hamdan was found guilty of providing “material support for terrorism.” first to aid al Qaeda as it carried out terrorist acts, and second to al Qaeda as a group labeled by U.S. authorities as an “internatonal terrorist organization.”  After being sentenced to 66 months in military prison, he was given credit for 61 months because of his captivity up to the verdict, and was sent home to serve the remainder of the sentence.
In the appeal, Hamdan’s attorneys raised three issues: first, they argued that the military commissions set up by Congress did not have the authority to try the crime of providing material support for terrorism, because that crime was not a violation of international law; second, they contended that his conviction was the result of an ex post facto prosecution because his alleged crimes occurred before the commission was created, and, third, they asserted that his rights to legal equality were violated because the commission system targeted only aliens, in an attempt to punish them exclusively.
The military appeals court rejected all three of the challenges, concluding that the material support charge was a valid one under international law, that the crime had pre-existed the creation of the commission trial system, and that he had no constitutional guarantee of legal equality under the Fifth Amendment.
In discussing his equal protection claim, the appeals court said that Congress had not discriminated against aliens in making only non-citizens subject to trial by commission. Using wartime powers, the court ruled, the President and Congress have broad authority to draw distinctions between aliens and citizens in efforts to protect the nation’s security.
The appeals court also rejected the Hamdan claim that the Boumediene decision guaranteed to him all of the constitutional rights of due process and legal equality that are available in the regular federal courts.  That, it said, is too broad a reading of a decision that actually only established a constitutional right to pursue a habeas challenge to confinement.
In turning aside that challenge, the appeals court relied in part upon the narrow reading of the Boumediene decision that the D.C. Circuit Court had made in its decision last year in Al-Bihani v. Obama. The Circuit Corut said that aliens held by the military have fewer rights than citizens or aliens living legally in the U.S. (The Supreme Court refused to review that decision in April [docket 10-7814] with Justice Elena Kagan not taking part.)
After denying the equal protection claim, the military appeals court said it was not ruling on any other due process rights, although noting that the Boumediene decision had created the habeas right as a due process guarantee.
