Amicus Curiae Brief — Hamdan v. Rumsfeld

IN THE ) opncec?

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Supreme Court of the United State

SALIM AHMED HAMDAN,

Petitioner,

v.

DONALD H. RUMSFELD, ET AL.,

Respondents.

On Writ of Certiorari to

the United States Court of Appeals

for the District of Columbia Circuit

BRIEF OF PROFESSOR RICHARD D. ROSEN,

ASSOCIATE DEAN AND DIRECTOR OF CENTER FOR

MILITARY LAW AND POLICY, TEXAS TECH

UNIVERSITY SCHOOL OF LAW AND THE

GEORGETOWN UNIVERSITY LAW CENTER

APPELLATE LITIGATION PROGRAM AS AMICI

CURIAE IN SUPPORT OF PETITIONER

ADDRESSING THE ISSUE OF ABSTENTION

STEVEN H. GOLDBLATT*

ALISTAIR E. NEWBERN

DAVID J. ARKUSH

Appellate Litigation Program

Georgetown University Law Center

111] F Street, N.W., Suite 123

Washington, DC 20001

(202) 662-9555

* Counsel of Record for the amici curiae

TABLE OF CONTENTS ;

TABLE OF AUTHORITIES. ......:.cccccsccscsescceccscssesscessoncsecseosecosossosssssoesees i

INTEREST OF THE AMICI CURIAE............:secscccesseseeteessensesenanenenees 1

SUMMARY OF ARGUMENT. ..........c0--sccccccscsscerseccsenccsenssesersesseneesssees 3

BI secctnspccsttencrssssenssenesipecnsnieniinninsaprapeniniiaineaminiinsnsinninaneials 6

I. ABSTENTION IS NOT APPROPRIATE WHERE, AS

HERE, THE QUESTIONS UPON WHICH CERTIORARI

HAS BEEN GRANTED ARE CHALLENGES TO THE

JURISDICTION OF THE MILITARY COMMISSION.........-.-+: 6

Il. THERE IS NO BASIS FOR ABSTENTION BECAUSE THE

MILITARY PROCEEDINGS DO NOT PROVIDE

HAMDAN A FULL AND FAIR OPPORTUNITY TO

LITIGATE HIS CONSTITUTIONAL CLAIMG........::c0eseeseeeee 13

A. The Military Commission Process Cannot Give Full

and Fair Hearing to Hamdan’s Constitutional Claims..... 14

B. The Military Commission Offers No Guarantee C'f

Reaching a Final Decision That Can Be Reviewed By

the Article III Courts, Should This Court Abstain. ........... 24

Ill. HAMDAN’S CASE PRESENTS FUNDAMENTAL

QUESTIONS OF GREAT IMPORTANCE IN TIME OF

WAR WHICH THIS COURT SHOULD DECIDE

PROMPTLY AND WITHOUT DEFERING TO THE

on

III issescsibisscnsiesicppicnrieinaiisisiienkasidilubeiiibiapuinahendeciceetisinbisiletecsie 29

TABLE OF AUTHORITIES

Cases

Abney v. United States, 431 U.S.651 (1977) ...sssssecererseesesereereeesees 13

Ankenbranat v. Richards, 504 U.S. 689 (1992) .......cccccccssecsseseeeneees 13

Burns v. Wilson, 346 U.S. 137 (1953) .....ccsesseseseressersseeseesenes 15, 16, 20

Cohens v. Virginia, 19 U.S. (6 Wheat.) 264 (1821) .....-.cececesseseseees 13

Colo. River Water Conservation Dist. v. United States, ‘

Te ciccinttetctsiennntstnrtntnntietnnneneniinniinieinmnntntie 4,13

Cooke v. Orser, 12 M.J. 335 (C.M.A. 1982)........ccccccssseesessesseeeeseeeenees 1

Gusik v. Schilder, 340 U.S. 128 (1950) .....scsscsescseeseneneeeereeerennees 6,15

Grant v. Gould, 126 Eng. Rep. 434, 451 (CP. .792) ........ccesseeeensnens 6

Hamdan v. Rumsfeld, 344 F. Supp. 2d 152 (D.D.C. 2004)............ 10

Hamdan v. Rumsfeld, 415 F.3d 33 (D.C. Cir. 2005)... passim

Hamdi v. Rumsfeld, 542 U.S. 507 (2005)...........csceeseceeesesnenersnsnsnensens 5

PElats &. Boneres,, SHO EG. TED Cae ccvecsccssencsncecccenssssssscesvensnenesnssvsees 6

Home Bldg. & Loan Ass'n v. Blaisdell,

2BO US. FOB (EGBG) .neaceccosdenseccrererss-esecscscensrocssnocnssssscsssocsseneceneens 27

Houghton v. Shafer, 392 U.S. 639 (1968) .......--ssseeresesesesneeeseseseess 21

Johnson v. Eisentrager, 339 U.S. 763 (1950)......sessseseeresenernerensenenes 8

Marbury v. Madison, 5 U.S. 137 (1803) .......-ssssseseesereseseseeneeeseenesee 27

Ex Parte MicCandile, 73 US. S18 (1067) ..0.c..0ce.ccscccecsecscssaseceseesensones 26

Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866) .........-:sseceseseeeseeres 7,28

Ex parte Quirin, 317 U.S. 1 (1942)... ececsseeseeneneneereeeneenennenenes passim

Ex parte Yerger, 75 U.S. 85 (1868) .......-s-escsssesseseseee seneneneneneneneeneens 26

Ex parte Reed, 100 U.S. 13 (1879) .......:.sceceseeeseereeseeeeeensenseeeaneenensens 6

McElroy v. United States ex rel. Guagliardo,

SO TE BE I ccetiseccstetccintentneniteticomepeeennnnansnvnmnmetnan 4,7

Middlesex County Ethics Comm. v. Garden State Bar Ass'n,

Bt Eo ee 4,14

Noyd v. Bond, 395 U.S. 683 (1969) .........ssssssssssseesseesenneeees 4,7, 16,17

Ohio Civil Rights Comm'n v. Dayton Christian Schools, Inc.,

SF EE, Ga Ie ec ectrersccrntcictienteresensivinticianennanneniimtreaminuinnniiin 4,15

Parisi v. Davidson, 405 US. 34 (1972) ........s-.cccesccececesecssesccsscssesons 14

Rasul v. Bush, 542 U.S. 466 (2004) ...-....eccccecccecseeseeseeeesneeennenes passim

gg ee Rk LU , passim

Schlesinger v. Councilman, 420 U.S. 738 (1975)......ccececereeeees passim

Solorio v. United States, 483 U.S. 435 (1987)..........ccccccceseeeseeeeeeees 12

iii

United States ex rel. Toth v. Quarles, 350 U.S. 11 (1955)........ 4,7,10

United States v. Curtis, 32 MJ. 252 (C.M.A. 1991) ......ccccecceseeeeeeeees 2

United States v. Daniels, 60 M.J. 69 (C.A.A.F. 2004) ......ccccccceseeeeees 2

LInited States v. Dowty, 48 M.J. 102, 106-07 (C.A.A.F. 1998)....... 17

United States v. Ellis, 57 M.J. 375 (C.A.A.F. 2002)......cccsessseesensseres 2

United States v. Fogg, 52 M.J. 144 (C.A.A.F. 1999).....ccccseseseseseseees 2

United States v. Gipson, 24 M.J. 246 (C.M.A. 1987).....cccseseeseeesees 2

United States v. Hurn, 55 M.J. 446 (2001) .........ccsesseesesseeseeeeeseeseees 2

United States v. Kelly, 45 M.J. 259 (C.A.A.F. 1996) ......cccccceeeseneeees 2

United States v. Matthews, 16 M.J. 354 (C.M.A. 1983) ....ccccecceeees 1

United States v. Rorie, 58 M.J. 399 (C.A.A.F. 2003) ......:cssecsseseseees 2

Weirman v. United States, 36 Ct. Cl. 236 (1901) .....ceececceeceeeeeeerees 10

Wise v. Withers, 7 U.S. (3 Cranch) 331 (1806)........cccseseeeeeseeeees 6

Younger v. Harris, 401 U.S. 37 (1971) ........ssssresrsessesssssesesseseres 4,14

Statutes

STOEL LAN CLS T ATIC COIOTS 17

i lesilinemenbieinliens 17

a scissile aceeneseeshemieamniiebladentbnennaebanionniigdiies 17

I aii tales dae hena tebe lena htahiebiinls 17

dk ESE REE ETS oe noe aan OEE RET DIET ORR EDT 17

I theta iain ial iiapalabaieaaanibiy 4

Authorization for the Use of Military Force (AUMF), Pub. L.

I sill eetnslocasioasiniie’ 6,7

Be SE, BI Ge, CI cerccecneset neces eesiestnnstemeresensenccesemnees 4,24

Treaties

Geneva Convention Relative to the Treatment of Prisoners

of War (GPW), Art. 3 (Common Article 3),

es eC iniitosicientenacicininitiniieiicentticichsmeiiernienmnteiinnas 4

Geneva Convention Relative to the Treatment of Prisoners

of War (GPW), Art. 102, 6 U.S.T. 3316 (1949) oo... eecceeeeeeeseeeeeees y

Geneva Convention Relative to the Treatment of Prisoners

of War (GPW), Art. 5, 6 U.S.T. 3316 (1949) ..0....cccccecesseseeeeeceeeees )

iv

Regulations

Military Commission Instruction No. 2 (Apr. 30, 2003),

available at http: / /www.defenselink.mil/news/

May2003/d20030430milcominstno2.pdf .......scsesseeeeeeeeeeeee 23

Military Commission Instruction No. 9, (Oct. 11, 2005),

available at http:/ /www.dod.gov/news/

Oct200S /A2BOS IDL ENICID.DGE. 0.0 cercovcccccessecsvsscesvecscseenseswesessenes 19

President's Military Order of November 13, 2001, Detention,

Treatment, and Trial of Certain Non-Citizens in the War

Against Terrorism, 66 Fed. Reg. 57,833

Gare, BG, BEDE) ccccenccesnersesvenseccenicrsrienmnarinieenintineintssemnenniiis 3, 17, 20

Revised Military Commission Order No. 1 (Aug. 31, 2005),

available at http: / /www.defenselink.mil/news /Sep2005/

SN EE cccnenerencrninnmnniniitinaniinin 19, 20, 24

Rules

Supreme Court Rube 37 3(a) .....ccc.cerscsseesesvevevovocnsesesescosesessneesesceeceses 1

Supreme Coust Raske 39.6. ...ccccenesssneneremrsermsvommmnnemneqnansnesiaasitinton 1

Other Authorities

ABA Task Force on Terrorism and the Law, Report and

Recommendations on Military Commissions at 12 (Jan. 4,

2002) (hereinafter, ABA Report on Military

Commissions), available at

http:/ /www.abanet.org/leadership/military.pdf............... 18

Mem. Re: Humane Treatment of al Qaeda and Taliban

Satis GOURD. 7, Si cecercsesicsvinavsntnntsentannintiidiataigiiaamiias 20-21

Kevin J. Barry, Military Commissions: Trying American Justice,

BOGS. ARRES LAW. 1 CABGE) cccesccscesscssssscsessnseseesetonnnseennie 18

Brigadier General John S. Cooke, The Twenty-Sixth Annual

Kenneth J. Hodson Lecture: Manual for Courts-Martial 20X,

296 DAB. 6. \Raew. © CODBED ..cerenersnnnssssvsisisnesstehicemiatannpanniansiiin a

Alberto R. Gonzales, Mem. for the President, “Decision Re

Application of the Geneva Convention on Prisoners of War

to the Conflict with Al Qaeda and the Taliban” (Jan. 25,

2002), available at http:/ / www.msnbc.msn.com/id/

EE AEST E R C TEE 9,21

Richard D. Rosen, Civilian Courts and the Military Justice

System: Collateral Review of Courts-Martial, 108 Mil. L. Rev.

Be ndintbaantoisisesiitesecicentestencnenemanieenesecemnseapetseunsecesamsmerenene 6, 16

Joel Samaha, Sam Root, and Paul Sexton, eds., Transcript of

Proceedings before the Military Commission to Try Persons

Charged with Offenses against the Law of War and the Articles of

War, Washington D.C., July 8 to July 31, 1942, Minneapolis:

University of Minnesota (2004), available at

http: / /www.soc.umn.edu/~samaha/nazi_saboteurs /

SII - suncebdieiintenesttntnaiannssteascedsetencsestbenpntomnesspenenctovtocsmanersaees 21

Carl Tobias, Detentions, Military Commissions, Terrorism,

and Domestic Case Precedent, 76 S. Cai. L. Rev. 1371

INTEREST OF THE AMICI CURIAE!

Professor Richard D. Rosen is an Associate Dean and

the Director of the Center for Military Law and Policy at the

Texas Tech University School of Law. Before assuming

these positions, Dean Rosen completed a twenty-six-year

career as an Army judge advocate. His assignments

included Commandant (Dean) of the Judge Advocate

General’s School, United States Army, in Charlottesville,

Virginia; Staff Judge Advocate of the Il] Armored Corps and

Fort Hood, Texas; Staff Judge Advocate of the Ist Cavalry

Division; and Deputy Legal Counsel to the Chairman of the

Joint Chiefs of Staff. He has written in the area of habeas

corpus review of military courts and has an ongoing interest

in military justice and the proper relationship between

military tribunals and the Article HI courts.

The Appellate Litigation Program at Georgetown

University Law Center is a clinical program primarily

engaged in pro bono representation of parties and amicus

cuxiae practice in civilian courts, including this Court and

the Article III courts of appeals. The Program has also

appeared as an amicus curiae in the United States Court of

Appeals for the Armed Forces, both upon invitation of the

court and at the Program's request, beginning with Cooke v.

Orser, 12 M.J. 335 (C.M.A. 1982) (enforceability of promise of

immunity as a matter of due process or under military law),

and in nine cases thereafter, including United States v.

Matthews, 16 MJ. 354 (C.M.A. 1983) (validity of military

1 Pursuant to Rule 37.3(a) of the Rules of this Court, the

parties have consented to the filing of this brief and letters of

consent have been lodged with the Clerk. Pursuant to Rule 37.6 of

this Court, we state that no counsel for a party has written this

brief in whole or in part and that no person or entity, other than

amici or their counsel, has made a monetary contribution to the

preparation or submission of this brief.

death penalty procedures); United States v. Gipson, 24 MJ.

246 (C.M.A. 1987) (admissibility of polygraph evidence in

court-martial proceedings); United States v. Curtis, 32 M.J.

252 (C.M.A. 1991) (validity of death penalty where

aggravating factors are determined by the President); United

States v. Kelly, 45 MJ. 259 (C.A.A.F. 1996) (authority of

service court of criminal appeals to disregard precedent

from Court of Appeals for the Armed Forces); United States

v. Fogg, 52 MJ. 144 (C.A.A.F. 1999) (Fourth Amendment

search and seizure); United States v. Hurn, 55 M.J. 446 (2001)

(application of Batson v. Kentucky, 476 U.S. 579 (1986), in a

military setting); United States v. Ellis, 57 M.J. 375 (C.A.AF.

2002) (Fifth Amendment voluntariness of confession); United

States v. Rorie, 58 M.J. 399 (C.A.A.F. 2003) (right to abatement

where service member dies while appeal is pending); United

States v. Daniels, 60 MJ. 69 (C.A.A.F. 2004) (Fourth

Amendment search and seizure).

Dean Rosen and the Georgetown Appellate

Litigation Program have extensive experience litigating

before the military justice system and an ongoing interest in

its ability to afford service members substantially equivalent

justice as is provided in civilian courts. They participate

here to address the abstention issue generally and, in

particular, the extent to which this Court’s decision in

Schlesinger v. Councilman, 420 U.S. 738 (1975), articulating the

Court’s modern abstention doctrine with regard to court-

martial proceedings, applies when the military tribunal is a

commission rather than a court-martial. The United States,

in its brief in opposition to certiorari in this case, treats

Councilman abstention principles as applicable to military

proceedings generally. Opp. Cert. at 21-22. Professor Rosen

and the Georgetown Appellate Program here argue that

there is no basis for treating military court-martial and

military commission review as equivalent for abstention

purposes and that the Government's position, should it

prevail, would substantially depreciate the value of the

important safeguards now applied in court-marital

proceedings only.

SUMMARY OF ARGUMENT

ee

This Court granted certiorari to consider two

questions arising out of the trial by military commission of

petitioner Salim Ahmed Hamdan, an alleged enemy

combatant captured by United States forces during the

ongoing hostilities in Afghanistan. The first question

addresses the President's authority to convene military

commissions to try those whom he has identified as

“terrorists or those who support them.” See President's

Military Order of November 13, 2001, Detention, Treatment,

and Trial of Certain Non-Citizens in the War Against

Terrorism, 66 Fed. Reg. 57,833, 57,833 (Nov. 16, 2001)

(hereinafter, “President’s Military Order”) (establishing

military commission jurisdiction over members of al Qaida,

those who have attempted acts of terrorism, or those who

have harbored such persons). The second question concerns

the ability of a person so charged to obtain enforcement in

Article Ill federal courts of rights protected under the

Geneva Convention Relative to the Treatment of Prisoners of

War (GPW), 6 U.S.T. 3316 (1949). Both questions challenge

the military commission’s jurisdiction over Hamdan and

both present “basic constitutional issues of utmost concern”

with regard to restriction of individual liberties during a

time of heightened national security interest. Reid v. Covert,

354 U.S. 1, 3 (1957).

The government, however, urges consideration of a

third question: whether this Court should abstain from

hearing Hamdan’s claims while his trial before a military

comunission goes forward. See Opp. Cert. at l.2 Abstention

is the exception to the rule that jurisdiction, when

established, should be exercised. See Colo. River Water

Conservation Dist. v. United States, 424 U.S. 800, 813 (1976).

This Court has never abstained from a habeas petitioner's

claims that a military tribunal has no jurisdiction to try the

petitioner at all. See Schlesinger v. Councilman, 420 U.S. 738,

756-57 (1975), Noyd v. Bond, 395 U.S. 683, 696 (1969); McElroy

v. United States ex rel. Guagliardo, 361 U.S. 281, 282 (1960);

Reid, 354 U.S. at 4; United States ex rel. Toth v. Quarles, 350

U.S. 11, 13 (1955); Ex parte Quirin, 317 U.S. 1, 19 (1942).

Further, the principles of comity and deference that guide

abstention decisions simply do not arise where there is no

opportunity for “full and fair” hearing of the petitioner's

constitutional claims before a competent tribunal. Ohio Civil

Rights Comm'n v. Dayton Christian Schools, Inc., 477 U.S. 619,

627 (1986); Middlesex County Ethics Comm. v. Garden State Bar

Ass‘n, 457 U.S. 423, 435 (1982); Younger v. Harris, 401 U.S. 37,

45 (1971). The military commission at issue in this case,

which operates under ad hoc rules created entirely by the

President and over which the President is the ultimate

review authority, does not provide full and- fair

consideration of the issues Hamdan raises and is not the

type of forum to which this Court will defer.

Nor is there any basis for creating a special wartime

or emergency exception that would require abstention from

2 Although the Government advanced its abstention

argument as a question presented for review, Opp. Cert. at I, the

Court did not grant review of that question. Therefore, the Court

may have resolved the issue at the certiorari stage. This brief is

filed, however, in the event that the issue is considered at the

merits stage. The brief does not address the very recent legislation

regarding judicial review of detention of enemy combatants

although its amendments to 28 U.S.C. § 2241 do not appear to

apply to pending claims. See H.R. 2863, Title X, Sec. 1005(h), 109th

Cong. (2005) (signed into law on December 30, 2005).

Hamdan’s claims. While some accommodation is necessary

to allow the President to defend the nation, war is also a

time for heightened vigilance from all branches of

government, working together to preserve the basic liberties

for which the war is fought. This Court has already twice

rejected arguments that it has a diminished role in war in

cases arising out of the United States’ current conflicts. See

Hamdi v. Rumsfeld, 542 U.S. 507, 536 (2005) (“[W]e

necessarily reject the Government's assertion that separation

of powers principles mandate a heavily circumscribed role

for the courts in such circumstances.”); Rasul v. Bush, 542

U.S. 466, 474 (2004) (“[T]his Court has recognized the federal

courts’ power to review applications for habeas relief in a

wide” variety of cases involving executive detention, in

wartime as well as in times of peace.”). It should do so

again in this instance and hear Hamdan’s claims without

delay.

ARGUMENT

I. ABSTENTION IS NOT APPROPRIATE WHERE,

AS HERE, THE QUESTIONS UPON WHICH

CERTIORARI HAS BEEN GRANTED ARE

CHALLENGES TO THE JURISDICTION OF THE

MILITARY COMMISSION.!

This Court has not required the Article ITI courts to

abstain from challenges to the right of a military tribunal “to

try [a defendant] at all,” whether the tribunal in question is a

military commission or a court-martial. Schlesinger v.

Councilman, 420 U.S. 738, 758 (1975) (quoting Noyd v. Bond,

395 U.S. 683, 696 n.8 (1969)); Ex parte Quirin, 317 U.S. 1, 19

(1942).2, Hamdan’s petition presents this kind of

jurisdictional challenge, acknowledging that he can be tried

by the military, but arguing that the military commission

convened under the President’s Order has no jurisdiction

over him. See Hamdan v. Rumsfeld, 415 F.3d 33, 37 (D.C. Cir.

' Neither English courts nor the courts in this country have

ever expressed reluctance to review the jurisdiction of military

tribunals over the person, nor have they given deference to a

military tribunal's assertion of jurisdiction. Indeed, the one issue

civilian courts have always reviewed in collateral challenges to

military proceedings is whether the military tribunal had

jurisdiction. See e.g., Hiatt v. Brown, 339 U.S. 103, 111 (1950); Ex

parte Reed, 100 U.S. 13, 23 (1879); Ex parte Milligan, 71 U.S. (4 Wall.)

2, 118 (1866); Wise v. Withers, 7 U.S. (3 Cranch) 331, 337 (1806);

Grant v. Gould, 126 Eng. Rep. 434, 451 (C.P. 1792).

2 Until its 1950 decision in Gusik v. Schilder, 340 U.S. 128

(1950), this Court generally did not abstain at all when the

jurisdiction of a military court was at issue. Richard D. Rosen,

Civilian Courts and the Military Justice System: Collateral Review of

Courts-Martial, 108 MIL. L. REV. 1, 67-69 (1985).

2005). Hamdan challenges the military commission’s

jurisdiction on two bases. First, Hamdan asserts that the

military commission was convened without proper

authority and is not sanctioned by Congress’s Authorization

for the Use of Military Force (AUMF), Pub. L. No. 107-40,

115 Stat. 224; the Uniform Code of Military Justice (UCM)J);

or the President's inherent powers as Commander in Chief.

Second, he asserts that the military commission lacks

jurisdiction over him because it will not apply the GPW and,

under the treaty’s terms, he can only be tried by a tribunal

that affords those protections. Both points present

substantial allegations that the commission is not lawfully

constituted and has no right to try Hamdan at all.

Hamdan’s claims are similar in kind to those heard

without delay by this Court in Ex parte Quirin. There,

petitioners claimed that the President lacked authority to

order that they be tried by military commission, that they

should be tried in the civilian courts, and that the President's

order prescribing the military commission procedures

conflicted with the Articles of War and, therefore, that any

conviction it might issue would be void. Quirin, 317 U‘S. at

24. This Court’s unquestioned assertion of jurisdiction over

the petitioners’ claims and its use of extraordinary measures

to hear those claims during a special term, see id. at 19,

provide “compelling historical precedent for the power of

civilian courts to entertain challenges that seek to interrupt

the processes of military commissions.” Hamdan, 415 F.3d at

36.

This Court similarly has not abstained from such

jurisdictional challenges in the court-martial context. See

Councilman, 420 U.S. at 758; Noyd, 395 U.S. at 696 n.8. In

McElroy v. United States ex rel. Guagliardo, 361 U.S. 281 (1960),

Reid v. Covert, 354 U.S. 1 (1957), and United States ex rel. Toth

v. Quarles, 350 U.S. 11 (1955), this Court heard without

abstaining challenges to the authority upon which Congress

based its assertion of military jurisdiction over the

petitioners. See McElroy, 361 U.S. at 283 (challenging

extension of court-martial jurisdiction over civilians

employed by the armed forces outside the United States);

Reid, 354 U.S. at 3-4 (challenging application of UCMJ to

civilian dependents of members of the armed forces serving

overseas); Toth, 350 U.S. at 13 n.2 (challenging court-martial

jurisdiction over previously discharged servicemen). These

claims are equivalent to those made by the petitioners in

Quirin that the President did not have sufficient authority to

convene the military commission that would try them. See

Quirin, 317 US. at 24 (hearing petitioners’ arguments that

“the President is without any statutory or constitutional

authority to order the petitioners to be tried by military

tribunal for offenses with which they are charged”). There is

no question that these challenges to the military tribunal's

authority are jurisdictional in nature. So, too, is Hamdan’s

challenge to the President's authority to convene the military

commission before which he is set to stand trial.

Hamdan’s second claim, that he is entitled to federal

court enforcement of his GPW protections in any military

tribunal poised to try him, is also a challenge to the military

commission’s jurisdiction over him. See Johnson v.

Eisentrager, 339 U.S. 763, 785 (1950) (considering and

rejecting on the merits claim that “conviction of the Military

Commission was in excess of its jurisdiction” because it

would not apply certain GPW protections). The President

and the Combatant Status Review Tribunal (CSRT)

convened on his orders have determined that Hamdan is an

enemy combatant, not a prisoner of war, and that the GPW

does not apply to the current conflict in Afghanistan. See

Hamdan, 415 F.3d at 36, 40-42. Under these determinations,

the military commission convened to try Hamdan will not

apply any of the GPW’s protections. Hamdan asserts that he

is a prisoner of war or, at the very least, that his status is in

doubt and challenges the President's classification of the

conflict in Afghanistan as not international in scope and,

thus, not falling under the GPW. See Alberto R. Gonzales,

Mem. for the President, “Decision Re Application of the

Geneva Convention on Prisoners of War to the Conflict with

Al Qaeda and the Taliban” (Jan. 25, 2002) (hereinafter,

Gonzales Mem.) (noting that the Legal Adviser to the

Secretary of State “expressed a different view”), available at

http:/ /www.msnbc.msn.com/id/ 4999148 /site/newsweek.

On that basis, Hamdan contends that he is not subject to trial

before a military tribunal that does not afford to him the

GPW’s protections, at least until a competent tribunal

determines his proper status.

This is manifestly a jurisdictional claim. Article 102

of the Third Geneva Convention provides that “[a] prisoner

of war can be validly sentenced only if the sentence has been

pronounced by the same courts according to the same

procedure as in the case of members of the armed forces of

the Detaining Power... .” GPW, Art. 102, 6 U.S.T. 3316

(1949). A court that is not the “same court,” applying the

same procedures, as would try the Detaining Power's

service members cannot validly sentence a prisoner of war.

If Hamdan is correct in his assertions, such a court is

without jurisdiction over him. Further, Article 5 of the GPW

provides that, “[sJhould any doubt arise” as to whether a

person is properly categorized as a prisoner of war, “such

persons shall enjoy the protections of the present

Convention until such time as their status has been

determined by a competent tribunal.” GPW, Art. 5, 6 U.S.T.

3316 (1949). if this Court determines that Hamdan may

enforce his protections under the GPW, until his prisoner-of-

war status has been determined by a competent tribunal, he

may be tried only by court-martial.

Similarly, GPW Common Article 3 applies to persons

captured in an “armed conflict not of an international

character occurring in the territory of one of the High

Contracting Parties” and also provides that sentences levied

under the GPW must be pronounced “by a regularly

constituted court affording all the judicial guarantees which

are recognized as indispensable by civilized peoples.” GPW,

Art. 3 (Common Article 3), 6 U.S.T. 3316 (1949). Because

10

Hamdan disputes the President's characterization of the

conflict in Afghanistan, he argues that a tribunal that is not a

“regularly constituted court” affording basic judicial

guarantees does not have jurisdiction to try him under the

GPW. To demonstrate that a military commission is not

such a court, Hamdan cites the fact that he has already been

excluded from significant proceedings in his own trial, see

Hamdan v. Rumsfeld, 344 F. Supp. 2d 152, 171 (D.D.C. 2004)

(“Counsel made the unrefuted assertion at oral argument

that Hamdan has already been excluded from the voir dire

process ....”). Denial of the right to be present at one’s own

trial is recognized as an act which deprives a military court

of jurisdiction. See Weirman v. United States, 36 Ct. Cl. 236,

238 (1901) (“In cases of felony, where the prisoner's life or

liberty is in peril, he has the right to be present, and must be

present, during the whole of the trial, and until the final

judgment. If he be absent, either in prison or by escape, there

is a want of jurisdiction over the person, and the court can

not proceed with the trial, or receive the verdict, or

pronounce the final judgment.”) (quoting Thomas Cooley, A

TREATISE ON THE CONSTITUTIONAL LIMITATIONS WHICH REST

UPON THE LEGISLATIVE POWER OF THE STATES OF THE

AMERICAN UNION 319 (1890)). Although the Court of

Appeals did not so find, see Hamdan, 415 F.3d at 42,

Hamdan’s Common Article 3 claim is also, therefore, a

challenge to the military commission’s jurisdiction,

contending that it has no personal jurisdiction over Hamdan

or persons of his status under the GPW.

As in Quirin, McElroy, Reid, and Toth, this Court

should not abstain from hearing either of the jurisdictional

challenges presented in Hamdan’s appeal. The civilian

petitioners in McElroy, Reid, and Toth claimed that they were

improperly subjected to court-martial jurisdiction because

their status as civilians entitled them to the greater

protections afforded by the Article III courts. In each case,

the Court found that the military had no right to try the

petitioners at al] and that it could not “interfere with the

11

liberty of civilians even for the limited purpose of forcing

them to answer to the military justice system.” Councilman,

420 U.S. at 759. In each, the Court based its holding on a

determination that the petitioners could not be compelled to

appear before a tribunal that did not offer the rights that

their civilian status guaranteed. See McElroy, 361 U.S. at 284

(noting historical authority that “a civilian, entitled as he is,

by Art. VI of the Amendments to the Constitution, to trial by

jury, cannot legally be made liable to the military law and

jurisdiction, in time of peace, is a fundamental principle of

our public law”) (quoting William Winthrop, MILITARY LAW

AND PRECEDENTS 143 (2d ed. 1896)); Reid, 354 U.S. at 37

(noting that, “[nlotwithstanding the recent reforms, military

trial does not give an accused the same protection which

exists in the civil courts” and finding spouses of service

members entitled to the greater protections); Toth, 350 U.S. at

23 (finding Toth and other ex-service members to be “like

other civilians . . . entitled to have the benefit of safeguards

afforded those tried in the regular courts authorized by

Article III of the Constitution”). In such circumstances, the

Court found that the civilians could not be compelled to

appear before the less-protective military tribunals as a

prerequisite to Article III court review. Councilman, 420 U.S.

at 759.

Hamdan’s argument is the same. Although Hamdan

does not argue that the military cannot try him at all—he

acknowleciges that he can be required to stand trial before a

properly constituted military body—this factor does not

distinguish Hamdan’s case from Toth, Reid, or McElroy in a

meaningful way. In each case, as in this one, the petitioners

claimed to have been improperly classified as belonging to a

group that may be tried by a military tribunal offering

circumscribed procedural rights. Just as the petitioners in

Toth, Reid, and MeElroy argued that they could not be tried

by court-martial because it would not afford them the

protections of an Article III court, Hamdan argues that the

military commission convened under the President’s Order

12

has no jurisdiction over him because it does not provide the

protections of a court-martial. Hamdan, 415 F.3d at 37. In

both situations, the habeas challenge is to the authority of a

tribunal offering limited procedural rights to assert criminal

jurisdiction over the accused. Similarly, the Quéirin

petitioners argued that they could not be tried by a military

commission applying procedures that did not comport with

the Articles of War. See Quirin, 317 U.S. at 47-48. While the

Court ultimately found that such protections were not

required, it did not abstain from evaluating the petitioners’

that challenge when presented in their habeas claims. The

Court also should not abstain from hearing Hamdan’s

claims.

The case for immediate review of Hamdan’s claims is

strengthened by comparison to those claims in which this

Court has found abstention to be appropriate in a military

context. When this Court has abstained from hearing a

challenge to a court-martial’s jurisdiction, that challenge has

been based on the nature of the offense charged, not the

status of the individual defendant. See Councilman, 420 US.

at 741 (abstaining from hearing claims “that the court-

martial lacked jurisdiction under . . . O'Callahan v. Parker, 395

U.S. 258 (1969), because the alleged offenses were not

‘service connected.’”). Such challenges are not the kind of

“substantial arguments denying the right of the military to

try [the petitioner] at all,” id. at 759, that this Court will hear

without deference. See Solorio v. United States, 483 U.S. 435,

439 (1987) (noting, in overruling O'Callahan, “unbroken line

of decisions from 1866 to 1960” in which “this Court

interpreted the Constitution as conditioning the proper

exercise of court-martial jurisdiction over an offense on one

factor: the military status of the accused”).

Much is at stake in this proceeding. The rights

Hamdan invokes here are not unlike the right to avoid a

second trial on the basis of the constitutional bar on double

jeopardy. In each instance, the defendant asserts that he

cannot be forced to stand trial. If a trial court denies a

13

double jeopardy motion, the criminal defendant may appeal

and have his double jeopardy rights resolved finally on

appeal before any second trial commences. See Abney v.

United States, 431 U.S.651, 662 (1977) (double jeopardy claims

“must be reviewable before that subsequent exposure

occurs.”). So too here, Hamdan asserts both that the military

commission is without lawful authority to try him and that,

under the GPW, he must be afforded full court-martial

proceedings until such time as his status as an enemy

combatant is conclusively determined. These rights

contemplate resolution of status before any trial takes place

and cannot properly be vindicated if Hamdan is forced to go

before the military commission prior to having his claims

heard by a court with the authority to make a proper judicial

determination of them.

Il. THERE IS NO BASIS FOR ABSTENTION

BECAUSE THE MILITARY PROCEEDINGS DO

NOT PROVIDE HAMDAN A FULL AND FAIR

OPPORTUNITY TO LITIGATE HIS

CONSTITUTIONAL CLAIMS.

Even if this Court were to find its prior precedent not

controlling here and reexamine whether it will hear

challenges to a military commission's jurisdiction generally,

the Court’s basic abstention jurisprudence dictates that it

cannot abstain while the military commission proceeds in

this case. “It is axiomatic . . . that ‘[a]bstention from the

exercise of federal jurisdiction is the exception, not the rule”

and “rarely should be invoked, because the federal courts

have a ‘virtually unflagging obligation . . . to exercise the

jurisdiction given them.” Ankenbrandt v. Richards, 504 U.S.

689, 705 (1992) (quoting Colo. River Water Conservation Dist. v.

United States, 424 U.S. 800, 813 (1976)); Cohens v. Virginia, 19

U.S. (6 Wheat.) 264, 404 (1821) (stating that the Court has “no

more right to decline the exercise of jurisdiction which is

14

given, than to usurp that which is not given”). When this

Court does abstain, it is for reasons of comity and because it

is assured that the claims presented will receive adequate

hearing before an established judicial body operating under

settled procedure and rule of law. See Councilman, 420 US.

at 757-58. Unlike a court-martial, the military commission

before which Hamdan is set to be tried is not such a body.

Instead, it is an ad hoc tribunal made up primarily of

members without legal training who apply an ever-shifting

set of rules to the claims that come before it. The

commission’s nominal review panels are composed entirely

of Executive Branch personnel and have only the power to

render advisory opinions about the proceedings themselves,

not the underlying constitutionality of the commission

process. The President, who directed the creation of the

commissions, is the ultimate review authority over all

claims, including Hamdan’s challenge to the President's

constitutional authority to convene the commissions. In

these circumstances, where there is no established and

adequate tribunal to which it will defer, abstention by the

Court would be an abdication of its essential role. No such

departure from this Court's basic principles is warranted in

this case.

A. The Military Commission Process Cannot Give Full

and Fair Hearing to Hamdan’s Constitutional

Claims.

This Court requires abstention only if the claimant

will receive a “full and fair opportunity to litigate his

constitutional claims” before an alternate tribunal, Ohio Civil

Rights Comm'n v. Dayton Christian Schools, Inc., 477 U.S. 619,

627 (1986); Middlesex County Ethics Comm. v. Garden State Bar

Ass'n, 457 U.S. 423, 435 (1982); Younger v. Harris, 401 U.S. 37,

45 (1971) (quoting Fenner v. Boydin, 271 U.S. 240, 243-44

(1926)). In these cases, the Court abstained because it found

15

that there was an adequate alternate forum in which the

litigants could fully and fairly adjudicate their constitutional

claims. See Ohio Civil Rights Comm'n, 477 U.S. at 629;

Middlesex, 457 U.S. at 435-37. The same “considerations of

comity, [and] the necessity of respect for coordinate judicial

systems” that underlie the Court’s abstention doctrine apply

with full force “to the balance governing the propriety of

equitable intervention in pending court-martial

proceedings.”® Councilman, 420 U.S. at 756-57 (citing

Younger, 401 U.S. at 46). “Under accepted principles of

comity, the court should stay its hand only if the relief the

petitioner seeks . . . would also be available to him with

reasonable promptness and certainty through the machinery

of the military justice system in its processing of the court-

* martial charge.” Parisi, 405 U.S. at 42; Gusik, 340 U.S. at 132.

The principles of comity underlying that determination,

however, are based upon this Court's extensive review and

approval of the procedural safeguards established by

Congress under the UCMJ and cannot be transferred to

military commission proceedings wholesale.®

. This principle is also drawn, in part, from the similar

doctrine of exhaustion of administrative remedies. See Councilman,

420 US. at 756 (noting that “practical considerations” underlying

military abstention “are similar to those that underlie the

requirement of exhaustion of administrative remedies”); Parisi v.

Davidson, 405 U.S. 34, 41 n.6 (1972) (“The concept of ‘exhaustion’ in

the context of the demands of comity between different judicial

systems is closely analogous to the doctrine of abstention.”).

. In this regard, “full and fair review” is used in the context

of abstention regarding jurisdictional claims as opposed to the

question whether a constitutional claim will be redetermined on

habeas review after court-martial proceedings have completed. See

Burns v. Wilson, 346 U.S. 137, 142 (1953) (plurality) (“[w]hen a

military decision has dealt fully and fairly with an allegation . . . it

is not open to a federal civil court to grant the writ simply to re-

evaluate the evidence. . . .”) (citation omitted). Application of this

16

Under the UCM], “[r]igorous provisions guarantee a

trial as free as possible from command influence, the right to

prompt arraignment, the right to counsel of the accused’s

own choosing, and the right to secure witnesses and prepare

an adequate defense.” Burns, 346 U.S. at 141. These

provisions “also establish a hierarchy within the military

establishment to review the convictions of courts-martial, to

ferret out irregularities in the trial, and to enforce the

procedural safeguards which Congress determined to

guarantee to those in the Nation’s armed services” and

“provide[] a special post-conviction remedy within the

military establishment, apart from ordinary appellate

review, whereby one convicted by a court-martial, may

attack collaterally the judgment under which he stands

convicted.” Id.

It is against the backdrop of these rigorous

procedural innovations, and with the knowledge that

“Congress has taken great care both to define the rights of

those subject to military law, and provide a complete system

of review within the military system to secure those nights,”

Burns, 346 U.S. at 140, that this Court has abstained while

court-martial proceeding go forward.” See Councilman, 420

U.S. at 760; Noyd, 395 U.S. at 694. The Court has given

deference to Congress’s attempt “to balance . . . military

necessities against the equally significant interest of ensuring

fairness to servicemen charged with military offenses, and to

standard in the context of collateral review by Article III courts

after military proceedings have concluded has proven difficult.

See, e.g., Rosen, supra note 4 at 67-76.

4 As the court of appeals correctly found, the second

Councilman rationale for abstention, that “comity aids the military

judiciary in its task of maintaining order and discipline in the

armed services,” “does not exist in Hamdan’s case.” Hamdan, 415

F.3d at 36 (quoting New v. Cohen, 129 F.3d 639, 634 (D.C. Cir.

1997)).

17

formulate a mechanism by which these often competing

interests can be adjusted.” Councilman, 420 U.S. at 757-758.

Particularly compelling to the Court in Councilman was

Congress’s creation of “an integrated system of military

courts and review procedures, a critical element of which is

the Court of Military Appeals [now the Court of Appeals for

the Armed Forces] consisting of civilian judges ‘completely

removed from all military influence or persuasion.’” Id. at

758 (quoting Noyd, 395 U.S. at 694-695).

Today, legally trained and command-insulated

military judges preside over the courts-martial, exercising

powers similar to civilian judges. UCMJ art. 26, 10 U.S.C. §

826; Rule for Courts-Martial 801, MANUAL FOR COURTS-

MARTIAL UNITED STATES (2005 ed.), available at

http: / /www.au.af.mil /au/awc/awcgate/law /mcm.pdf.

Court-martial judgments are subject to review by service

courts of criminal appeals, whose decisions are not subject to

administrative revision, except for the benefit of the accused,

see UCM] art. 66(e), 10 U.S.C. § 866(e). Moreover, courts-

martial are subject to discretionary review before the five-

judge civilian Court of Appeals for the Armed Forces, whose

decisions are similarly not subject to further review in the

Executive Branch, except for the benefit of the accused.

UCMJ art. 67(e), 10 U.S.C. § 867(e).2 If the Court of Appeals

for the Armed Forces reviews and decides a case, its decision

can be reviewed by this Court on petition for certiorari.

UCM] art. 67a, 10 U.S.C. § 867a.

Although the President's Military Order gives

nominal assurance of “full and fair” trial, see President's

Military Order at § 4(c)(2), the military commissions simply

do not provide the procedural guarantees of courts-martial.

° The military appellate courts also have authority to grant

extraordinary relief under the All Writs Act, 10 U.S.C. § 1651(a).

See Noyd, 395 U.S. at 695; United States v. Dowty, 48 M.J. 102, 106-07

(C.A.A.F. 1998).

18

Historically, military commission procedures generally

conformed to the “principles of law, rules of evidence, and

procedure then applicable in courts-martial.” Kevin J. Barry,

Military Commissions: Trying American Justice, 2003-Nov.

ARMY LAW. 1, 2 (2003) (citing Winthrop, MILITARY LAW AND

PRECEDENTS at 841-42); ABA Task Force on Terrorism and

the Law, Report and Recommendations on Military

Commissions at 12 (Jan. 4, 2002) (hereinafter, ABA Report on

Military Comunissions), available at

http:/ / www.abanet.org/leadership /military.pdf. Since

military commissions were last used some sixty years ago,

however, court-martial practice has evolved to the point

that, in many respects, it is indistinguishable from civilian

criminal proceedings. See ABA Report on Military

Commissions at 12. This reform was based on a previously

“largely untested precept that military effectiveness depends

on justice and that, by and large, civilian forms and

principles are necessary to ensure justice.” Brigadier

General John S. Cooke, The Twenty-Sixth Annual Kenneth J.

Hodson Lecture: Manual for Courts-Martial 20X, 156 MIL. L.

REV. 1, 9 (1998). The military commission before which

Hamdan is to be tried, however, is convened upon orders

that draw extensively from those issued by President

Roosevelt to convene military commissions during World

War Il. Indeed, at the time the President’s Military Order

was issued, then-Assistant Attorney General for the

Criminal Division, Michael Chertoff and then-White House

Counsel Alberto Gonzales declared that its terms “were

‘virtually identical’” to and “derived from” Roosevelt's

Proclamation and Order. See Carl Tobias, Detentions,

Military Commissions, Terrorism, and Domestic Case Precedent,

76 S. CAL. L. REV. 1371, 1378-79 (2003). For that reason, they

diverge radically from modern court-martial procedure and

are a relic of an earlier time, adopting a judicial scheme long

abandoned by the military and unfamiliar to contemporary

judge advocates.

19

There can be no full and fair review in such bodies.

The government asks this Court to defer, not to an

independent judicial review process, but, in essence, to the

President himself. Although it provides some appearance of

hearing by a deliberative process and multi-level review,

including three-member review panel, its decisions are

finally controlled by the President alone. See Revised

Military Commission Order No. 1 § 6(H)(4) (Aug. 31, 2005),

available at http:/ /www.defenselink.mil/news/

Sep2005 /d20050902order.pdf, (hereinafter, Military

Commission Order No. 1) (requiring Secretary of Defense to

establish review panel); id. § 6(H)(6) (vesting final review of

the military commission in the President or the Secretary of

Defense as his designee).? Accordingly, were this Court to

abstain, it would do so at the behest of the executive to allow

Hamdan’s claims to remain in a review process that takes

place entirely within the Executive Branch, which has

already decided the questions presented. A _ military

commission, created by the President, serving at the

pleasure of the President, staffed by military officers under

the command of the President, and ultimately reviewed by

the President is not a proper tribunal to determine whether

the President’s Military Order convening that commission

was invalid or whether the commission itself has the

authority to try the defendant appearing before it. This is a

far cry from the structure of judicial independence carefully

° It is not clear whether the review panels even have the

authority to review Hamdan’s claims challenging the underlying

authority of the President to establish military commissions. By

instruction of the Department of Defense General Counsel, the

Panel is seemingly limited to reviewing the findings and sentences

of the military commissions. Military Commission Instruction No.

9, § 4.C.(1), (4) (Oct. 11, 2005), available at http:/ / www.dod.gov /

news /Oct2005/d20051014MCI9.pdf.

20

constructed for the Court of Appeals for the Armed Forces.!°

See Burns, 346 U.S. at 141 & n.7._ This Court should not

allow such consolidation of power by refraining from

undertaking judicial review, see Hamdi, 542 U.S. at 535-36

(rejecting position that “courts must forgo any examination

of the individual case” as an “approach [that] serves only to

condense power into a single branch of government”)

(emphasis original), and no recognized abstention doctrine

of this Court requires or allows that result.

Further, no system of independent review exists for

Hamdan’s claims within the military commission structure.

Military commission procedures are established and

implemented by the Secretary of Defense, who also appoints

its members. All judgments are reviewed by the Secretary of

Defense, see Military Commission Order No. 1 § 6(H)(5), and

must ultimately be forwarded for “final decision” to the

President himself, id. § 6(H)(6). Indeed, no portion of the

military commission process is open to scrutiny by any other

branch of government. This is an _ unprecedented

consolidation of power in the executive. Further, the

President issued the Military Order convening the

commissions in question upon a finding that he had the

authority to do so. See President's Military Order, 66 Fed.

Reg. at 57,833. The Executive Branch ha: also determined

that “none of the provisions of [the] Geneva [Convention]

apply to our conflict with al Qaeda in Afghanistan or

elsewhere throughout the world because, among other

reasons, al Qaeda is not a High Contracting Party to [the]

Geneva Convention.” Mem. Re: Humane Treatment of al

10 That the President went to such lengths to avoid using the

existing review structure provided under the UCMJ, including

appeal to the United States Court of Appeals for the Armed

Forces, suggests that the Executive Branch was not willing to allow

for judicial review that was independent of the control of the

President.

21

Qaeda and Taliban Detainees 1 (Feb. 7, 2002) (cited in Br. for

Appellants in Court of Appeals at 40); Gonzales Mem. at 1.

Without outside review of these issues—the essential issues

that Hamdan now raises to this Court—there is no reason

for the President to reconsider the decisions he has already

made. Where doing so “would be to demand a futile act,”

this Court will not demand that a petitioner bring his claims

before a tribunal that has predetermined its result. See

Houghton v. Shafer, 392 U.S. 639, 640 (1968).

The futility of presenting an argument against a

military commission’s authority to the military commission

itself was recognized by the government in its argument of

Quirin. The Quirin defendants argued before the military

commission that “the order of the President of the United

States creating this court is invalid and unconstitutional,”

and further questioned “the jurisdiction of any court except

a civil court over the persons of these defendants,” Transcript

of Proceedings before the Military Commission to Try Persons

Charged with Offenses against the Law of War and the Articles of

War, Washington D.C., July 8 to July 31, 1942, 45,

Minneapolis: University of Minnesota, 2004, Joel Samaha,

Sam Root, and Paul Sexton, eds.,

http:/ /www.soc.umn.edu /~samaha/nazi_saboteurs /nazi0

1.htm. The government responded:

In the first place, I cannot conceive that a

military commission composed of high

officers of the Army, under a commission

signed by the Commander-in-Chief, would

listen to argument on the question of its

power under that authority to try these

defendants. In the second place, let me say

that the question of the law involved is a

question, of course, to be determined by the

civil courts should it be presented to the civil

courts.

Id. at 5.

22

The attorney general recognized that the military

commission had no authority to decide “the question of its

power . . . to try [the] defendants.” Id. Ultimately the

Quirin commission heard argument on the issue whether the

commission had jurisdiction over the defendants and,

without stating the basis for its holding, held that “[t]he

Commission does not sustain the objection of the defense.”

Id. at 39. This cursory affirmance of the executive's order is

the expected response and cannot be considered a “full and

fair” adjudication of the petitioners’ claims. This Court

should not require the formalism that Hamdan obtain that

answer to a question long since decided before seeking

review.

Moreover, the military commission is not competent

to decide the substantial and complex constitutional issues

Hamdan raises. The commission is not a judicial tribunal. It

is staffed, at its first level, by military officers, only one of

whom must be an attorney. Hamdan will be tried by a

panel composed primarily of lay persons who cannot be

expected to have the expertise necessary to evaluate his

constitutional claims. Nor do those claims draw upon any

particular military expertise that the commissions’ members

might possess. See Councilman, 420 U.S. at 756-57 (finding

that considerations of “special competence” and “peculiar[]

expert[ise]” drawn from exhaustion principles of agency law

“apply in equal measure to the balance governing the

propriety of equitable intervention in pending court-martial

proceedings”).

Unlike Councilman, the issues raised by Hamdan will

not benefit from further factual refinement by or from any

unique military expertise. In Councilman, the question at

issue was one of fact: whether the accused's off-post transfer

of marijuana to another soldier constituted a service-

connected offense. Resolution of the issue turned on the

facts of the case and, in large part, depended upon the

“impact of [the] offense on military discipline and

effectiveness, on determining whether the military interest

23

in deterring the offense is distinct from and greater than that

of civilian society, and on whether the distinct military

interest can be vindicated adequately in civilian courts.”

Councilman, 420 U.S. at 760. This Court held that “[t]hese are

matters that often will turn on the precise set of facts in

which the offense has occurred.” Id. “More importantly,

they are matters as to which the expertise of military courts

is singularly relevant, and their judgments indispensable to

inform any eventual review in Art. III courts.” Id.

By contrast, Hamdan raises purely legal issues

unconnected to the facts of his particular case. The

_ President's constitutional or statutory authority to convene

military commissions is not fact-dependent. Moreover,

Hamdan’s status as an enemy combatant outside the

protections of the Third Geneva Convention is an issue

already decided by the Executive Branch, and one whose

further adjudication is not required as an element of the

government's case. Military Commission Instruction No. 2

(Apr. 30, 2003), available at http:/ /www.defenselink.mil/

news/May2003/d20030430milcominstno2.pdf, (setting forth

elements of offenses tried by military commission, which do

not include Hamdan’s status as an “unprotected” enemy

combatant). These are fundamental constitutional questions

directed to the expertise of the Article II courts.

When, as here, the only forum in which the

Hamdan’s claims may be heard does not provide an

adequate procedural mechanism that will ensure full and

fair hearing of the Hamdan’s claims, or when, as here, the

forum is nut competent to do so, there is no basis for

abstention. For principles of comity to apply, the petitioner

must have the opportunity to proceed before a concurrent

judicial authority that provides equal opportunity for

development of the petitioner’s claims. The military

commission is no such court.

= ;

24

B. The Military Commission Offers No Guarantee Of

Reaching a Final Decision That Can Be Reviewed

By the Article III Courts, Should This Court

Abstain.

Should this Court abstain from hearing Hamdan’s

claims at this time, the military commission set to try

Hamdan provides no guarantee of reaching final decision."

Indeed, proceedings before the military commission appear

to exist in perpetuity: at each level of intermediate review of

the commission’s findings, provision is made to return the

case for further proceedings, should the reviewing body

disagree with some aspect of the result. See Military

Commission Order No. 1 (providing that Appointing

Authority “if not so satisfied” that the proceedings were

administratively complete “shall return the case for any

necessary supplementary proceedings”); id. § 6(H)(4)

(allowing Review Panel to return the case to the Appointing

Authority for further proceedings, “provided that a majority

of the Review Panel has formed a definite and firm

conviction that a material error of law occurred”); id. §

6(H)(5) (allowing Secretary of Defense to “either return the

cases for further proceedings” or forward it to the President

for final decision). The President has the sole authority to

execute a final decision.

The lack of any guarantee of prompt resolution is

particularly troubling in this case because it vests in the

President the ability to avoid any form of judicial review, if

" Under the recently enacted legislation, it is also not clear

to what extent the Article III courts would be able to hear

Hamdan’s constitutional claims upon direct review of the military

commission's decision. See H.R. 2863, Title X, Sec. 1005(e)(3)(d). In

light of this recent development, and to the extent this issue

remains in doubt, review of Hamdan’s constitutional claims now

presented is especially appropriate.

25

this Court abstains. In light of the lengths to which the

President has gone to avoid review of the military

commission proceedings by the Article III courts, “from

contesting Petitioner's right to seek habeas relief, to holding

trials at Guantanamo, to changing commission rules after

trials have begun,” Pet. Rep. at 1, and, indeed, to avoid

judicial review of any controversy arising out of the current

military conflict, there can be no expectation that a final

decision will be quickly executed in this case. Cf. Padilla v.

Hanft, Case No. 05-6393 at p. 6 (4th Cir., December 21, 2005)

(holding that government's actions in that case “have given

rise to at least an appearance that the purpose of these

actions may be to avoid consideration of our decision by the

Supreme Court”). This lack of established procedure or

timeline for reaching final decision gives this Court no

assurance that, should it abstain from ruling at this juncture,

it will have an opportunity to review Hamdan’s claims again

within any reasonable timeframe. While this may be the

government’s intended result, allowing it to proceed

unchecked while the amorphous War on Terror continues,

under such circumstances, abstention is resolutely

inappropriate.

Ill. HAMDAN’S CASE PRESENTS FUNDAMENTAL

QUESTIONS OF GREAT IMPORTANCE IN TIME

OF WAR WHICH THIS COURT SHOULD

DECIDE PROMPTLY AND WITHOUT

DEFERING TO THE MILITARY COMMISSION.

In addition to the inapplicability of traditional

principles of comity and deference that justify abstention in

other contexts, Hamdan’s case presents issues that are too

important to delay their consideration in the Article Ill

courts. In part, the government asks the Court to abstain

because judicial review hinders the Executive Branch in

what it deems an unprecedented war against terrorism.

26

Opp. Cert. at 22-23. Buit, as this Court reaffirmed in the last

Term, “a state of war is not a blank check for the President,”

Hamdi, 542 US. at 536 (citing Youngstown Sheet & Tube Co. v.

Sawyer, 343 U.S. 579, 587 (1952)), and judicial review is not a

peacetime luxury to be discarded during times of crisis.

This Court has consistently recognized that, when questions

of this magnitude are raised during periods of national

emergency, they are properly resolved by the Article II]

courts upon presentation. See Quirin, 317 U.S. at 19; Ex parte

Yerger, 75 U.S. 85, 88 (1868) (hearing petitioner's habeas

claims that he was unlawfully subjected to the jurisdiction of

a military commission while he was held for trial before it);

See Ex parte McCardle, 73 U.S. 318, 320 (1867) (granting

McCardle’s pretrial habeas petition challenging the military

commission’s jurisdiction).!2 In each of these cases the Court

undertook review without considering abstention. Nothing

in this case counsels for a departure from that practice.

There are, however, even more fundamental reasons

why this Court should hear Hamdan’s claims at this time.

The Court, by determining whether wartime restrictions on

individual liberty exceed what the Constitution allows,

fulfills its role in our system of checks and balances. While

the Executive Branch’s weighty responsibility to protect the

nation in wartime entitles it to some deference from

coordinate branches, it is not specially tasked with the

ultimate responsibility for defining and safeguarding

individual rights. Its primary function is to combat

terrorism, wage wars, and do everything in its power to

prevent another national tragedy like that experienced on

September 11, 2001. In carrying out these grave

responsibilities, executive officials will inevitably test the

e Congress, apparently not anticipating any possibility of

abstention by the Court, ended McCardle’s case by stripping the

Court of jurisdiction before it rendered an opinion. Ex Parte

McCardle, 73 U.S. 318, 320 (1867).

27

boundaries of their authority. The balance that they strike

between security and individual rights will not always be

reasonable or consistent with constitutional dictates. See

Hamdi, 542 U.S. at 536; Rasul, 542 U.S. at 474. While

Congress also plays an important role in checking the

executive through its legislative powers, this Court is

charged with the responsibility for determining what the

Constitution protects in times of peace and war. See Hamdi,

542 U.S. at 535-36; Marbury v. Madison, 5 U.S. 137, 178 (1803).

The Court undertakes that vital role by deciding cases like

Hamdan’s.

The importance of the Court’s role and the need for

timely action is heightened, not diminished, in times of

national crisis or war.3 As this Court found, reflecting upon

the recently concluded Civil War,

When peace prevails, and the authority of the

government is undisputed, there is no

is See Reid, 354 US. at 14 (“[E]lemental procedural

safeguards were embedded in our Constitution to secure their

inviolateness and sanctity against the passing demands of

expediency or convenience.”). See also Youngstown Sheet & Tube,

343 US. at (refusing “to declare the existence of inherent powers ex

necessitate to meet an emergency,” which the founders “omitted”

from the Constitution because they “knew what emergencies were,

knew the pressures they engender for authoritative action, knew,

too, how they afford a ready pretext for usurpation.”); Rasul, 542

U.S. at 487 (Kennedy, J., concurring) (“A necessary corollary of

Eisentrager is that there are circumstances in which the courts

maintain the power and the responsibility to protect persons from

unlawful detention even where military affairs are implicated.”);

Home Bldg. & Loan Ass’n v. Blaisdell, 290 U.S. 398, 483 (1934)

(Sutherland, J., dissenting) (“If the provisions of the Constitution

not be upheld when they pinch as well as when they comfort, they

may as well be abandoned.”).

28

difficulty of preserving the safeguards of

liberty; for the ordinary modes of trial are

never neglected, and no one wishes it

otherwise; but if society is disturbed by civil

commotion—if the passions of men are

aroused and the restraints of law weakened,

if not disregarded—these safeguards need,

and should receive, the watchful care of those

intrusted- with the guardianship of the

Constitution and laws. In no other way can

we transmit to posterity unimpaired the

blessings of liberty, consecrated by the

sacrifices of the Revolution.

Ex parte Milligan, 71 U.S. 2, 123-24 (1866). Today, the Court's

necessary role in balancing security and liberty is as

important as it was during earlier conflicts. Like those who

preceded them in other times of crisis, today’s executive

officials are vigorously prosecuting their duties. Only this

Court can determine when these efforts violate the

Constitution through timely adjudication of cases like the

one before it now.

Hamdan’s action goes to the very heart of these

efforts and calls upon this Court to resolve critical

constitutional issues arising out of the current national crisis.

See Quirin, 317 U.S. at 19 (noting “duty which rests on the

courts, in time of war as well as in time of peace, to preserve

unimpaired the constitutional safeguards of civil liberty”).

In light of the importance of the questions before the Court,

and because its abstention doctrine indicates no reason to

delay hearing this case, the Court should not abstain in this

instance and should undertake its vital role by deciding

Hamdan’s claims.

29

CONCLUSION |

In urging this Court to defer to the military

commission proceedings and abstain from hearing

Hamdan’s petition, the government seeks to delay

indefinitely judicial review of the constitutional challenges

Hamdan asserts. Granting the government's request would

be an improper invocation of the abstention principles.

There is no alternate competent forum in which Hamdan’s

claims will be given full and fair hearing; there is only a

military commission “built upon no settled principles” and

“in truth and reality no law.” Reid, 354 U.S. at 26 (quoting

William Blackstone, 1 COMMENTARIES 413). Under such

circumstances, this Court cannot abstain. Hamdan’s

jurisdictional challenges to the military commission

proceedings are properly before it at this time. The Court

should fulfill its necessary role and decide these important

issues without delay.

Respectfully submitted.

STEVEN H. GOLDBLATT

Counsel of Record

ALISTAIR E. NEWBERN

DAVID J. ARKUSH

Appellate Litigation Program

Georgetown University Law Center

111 F Street, N.W., Suite 123

Washington, DC 20001

(202) 662-9555

January 6, 2006