# Amicus Curiae Brief — Hamdan v. Rumsfeld

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0208%3A65

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2006
- **Citation:** 548 U.S. 557

## Text

IN THE ) opncec?

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f
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0208%3A65. Public record. Not legal advice.