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Roger Fitch Esq
8 December, 2005  
Our Man in Washington

It’s been a busy time in Washington with the Guantanamo appeals. Lawyers for the detainees are having to argue the cases in the courts all over again, thanks to the govenment simply ignoring court rulings with which they do not agree. There is a pattern of behaviour by Rummy, Vice and others to “marginalise or eliminate the judicial function”. This sounds all too familiar


It’s been a busy fall in Washington, with a new Supreme Court term, a new chief justice and difficulties filling the Justice O’Connor position.

imageConferences are being held to determine which petitions for certiorari (ie, applications to appeal) should be granted. In a recent interview Justice Breyer (seen here) noted that while he had 300 cases a term before him as Chief Judge of the 1st Court of Appeals, the Supreme Court only hears about 80 cases a term, a reduction of 50 percent in the last 25 years.

The legal web site Scotusblog has described the initial winnowing of petitions in a “cert pool” procedure that sounds highly dubious to me.

In any case, thanks to the Justice Department’s strategy of ignoring rulings in the Supreme Court’s last term, several cases involving the “presidential” detentions in Guantanamo will be argued once again. Two of these are appeals that directly affect David Hicks, Australia’s very own Guantanamero.

First, there is the Hicks case itself, In Re Guantanamo Detainee Cases, or the Al Odah case as it has been rechristened by the Justice Department, although the Pentagon still calls him Al-Awda and the Kuwaitis call him Al-Oudah.

Al Odah was argued in the DC Court of Appeals on September 8, as previously reported. The government is appealing against the decision of District Judge Joyce Hens Green in favour of Hicks and 50-odd others, and simultaneously defending an appeal of the Boumediene case, where Judge Richard Leon unaccountably ruled in favour of the government on similar, but shakier, facts.

The Boumediene defendants weren’t even apprehended in Afghanistan. They were abducted from Bosnia in the face of a decision of the highest court of that country that they should not be extradited. Maybe it was this unseemly dust-up with the Bosnians that prompted the US to sign Britain up to a treaty where the US needs show minimal evidence to extradite from that country.

There were 16 petitioners – two Brits, two Australians and 12 Kuwaitis – whose cases caused the Supreme Court to rule in its June 2004 Rasul decision that detainees are entitled to habeas hearings in Washington DC.

Nine have been released, including everyone but Hicks in Rasul and half of the Kuwaitis in Al Odah. Mr Al Odah himself is on a hunger strike, although he is receiving “assisted feeding”, as the Pentagon calls it. The Kuwaiti government is negotiating for the release of Al Odah and the others.

So 16 have become seven, and it is possible that by the time Al Odah gets to the Supreme Court for the second time, David Hicks may be the only man standing.

Possibly the reason for that is because the British and Kuwaitis have made representations for their citizens. In fact, the Kuwaitis are doing that intensively, right now.

And the negotiator for the US government? The Bush administration deserves credit for giving the point man for illegal detention deals the straightforward title of “Ambassador-at-Large for War Crimes”.

The irony of course is that most “legal experts” concluded long ago that the operation of the Guantanamo prison is itself a grave violation of the Geneva Conventions, and thus constitutes a war crime under international humanitarian law.

imageThe Ambassador-at-Large is the aptly named Pierre Prosper (seen here) and he has parleyed directly with the Kuwaiti government concerning Al Odah and his mates – as indeed he would concerning Hicks, if the Aussies ever asked.

After his talks with Prosper, the Kuwaiti Foreign Minister, Sheikh Mohammed, commented:

“I have also explained to him that the measures … taken have no legal grounds and are not in conformity with the American Constitution and such measures are more harmful than the acts taken by terrorists against American interests”.

A wise man, Sheikh Mohammed. Nonetheless, Alexander Downer is probably a man Prosper could do business with.

The transcript of oral argument in Al Odah isn’t all that interesting, but I did enjoy an exchange between the lawyer for Al Odah and an unidentified judge, probably Randolph.

Remember, this is the very same court that was reversed by the Supreme Court last year, and counsel for the petitioners rather carelessly alluded to the first Al Odah appeal:

Mr Wilner: And as your Honor held at that time, it felt that the court didn’t have jurisdiction…
The Court: Courts don’t feel.
Mr Wilmer: I’m sorry?
The Court: Courts don’t feel.
Mr Wilmer: I’m sorry?
The Court: You said the court ‘felt’ that it didn’t have jurisdiction. I said courts don’t feel.
Mr Wilmer: Oh, I’m sorry. Well, I meant the court held at that time that it didn’t have jurisdiction.

This banter doesn’t auger well for the detainees, but in addition to the old Republican warhorses Sentelle and Randolph, there is one Clinton appointee, Judith Wilson Rogers, on the panel.

The other case making the rounds in Washington with consequences for David Hicks is the Hamdan case. That’s the military commission test case that was won by bin Laden’s highly dangerous driver in the District Court, where Judge James Robertson found the presidential commissions were, well, illegal. The Court of Appeals “felt” otherwise.

After weeks of consideration, a petition for certiorari in the Hamdan case has been granted by the Supreme Court at last.

Some court observers speculated that certiorari would be denied due to a four-four split, Roberts not voting. Others thought the delay was caused by a motion that was pending to intervene in Hamdan at the Court of Appeals, filed by counsel for another Guantanamero, a Mr Al-Oteibi.

If that motion had succeeded, it could have caused the Court of Appeals opinion in Hamdan to be vacated and the case reargued before a different panel or even en banc. A separate motion by Oteibi sought to disqualify Roberts, or at least his vote, which gave a bare majority to the finding that the Geneva Conventions don’t apply to the detainees – see my article of August 30.

That motion to intervene, which was opposed by Hamdan’s counsel, has now been denied by the Court of Appeals, and the motion to recuse Judge (now Chief Justice) Roberts has been returned unfiled.

Hamdan’s appeal in the Supreme Court will now proceed, and without the CJ’s participation. There won’t be a full court before January at the earliest, when the Senate will consider the nomination of Judge Alito to fill O’Connor’s position.

There is a late breaking development in the case. Hamdan’s lawyers on Tuesday (Dec. 6) filed an emergency motion in the DC District Court wanting orders that the respondents (Rumsfeld and other members of the administration) “cease and desist all attempts to undermine counsel’s relation with [the] petitioner”.

Also they want an order that Hamdan be returned to the general prison population at Guantanamo. In contravention of an order made by the District Court on November 8 last year Hamdan was removed from the general prison community, just two weeks after the Supreme Court granted a review of his case, and sent back to a solitary cellblock named Tango in Camp Delta.

Hicks is also at Tango, which is separated from the rest of the cellblocks by screens and where communication to anyone outside the block is prohibited.

As the motion and writ in aid of execution says: ”[Rumsfeld’s] actions have demonstrated a pattern of seeking to marginalize or eliminate the judicial function, up to the point of outright disobedience of duly entered court orders.”