Federal Judiciary

Hamdan convicted in split verdict

By Akin Gump Supreme Court Practice Group

In the first trial by a U.S. military commission in more than 60 years, a jury of six officers on Wednesday reached a split verdict of guilty and acquittal in the case of Salim Ahmed Hamdan, according to news accounts from Guantanamo Bay.  The case is almost certainly going to be appealed, first through a military review system then through civilian courts, perhaps ultimately to the Supreme Court.

Although the war crimes system used in Hamdan’s case has been in existence for nearly two years, its constitutionality has never been decided by either a military or civilian court.  Efforts by Hamdan and another detainee to stop the commission trials because of their claims of constitutional defects have been rebuffed in federal court.

It also has not yet been settled what constitutional rights a detainee has before a military commission; in Hamdan’s case, many of his lawyers’ constitutional challenges were rejected by the trial judge.

The New York Times reported Wednesday morning that “the commission acquitted Mr. Hamdan of a consiracy charge, arguably the more serious of two charges he faced, but convicted him of a separate charge of providing material support for terrorism.”   The Times said sentencing would be decided at a separate proceeding beginning later in the day Wednesday.  The maximum sentence is life, which Hamdan would serve at a facility on the U.S. Navy base at Guantanamo.

Hamdan is a Yemeni national who had served as a driver for terrorist network chief Osama bin Laden.  The military first attempted to prosecute him under a system set up by President Bush, but the Supreme Court struck that down in 2006 (Hamdan v. Rumsfeld). Congress then passed the Military Commissions Act of 2006, creating a new war crimes system.  Hamdan is the first to be tried by such a tribunal.

Under the MCA, a verdict and sentence are first reviewed by a Pentagon official known as the “Convening Authority.”  That official has the “sole discretion and prerogative” to modify the verdict and the sentence imposed, but may not increase the sentence.

Beyond that official, there is a right to an automatic appeal if the commission and the Convening Authority have agreed on a guilty verdict. The appeal goes to a special military court, the U.S. Court of Military Commission Review.  Only after those two steps have been followed may a case then go to a civilian court — initially, the D.C. Circuit Court.

From there, a case may go to the Supreme Court on certiorari, with the Justices having the authority to grant or deny review.

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Meanwhile, in the ongoing legal controversy in U.S. District Court in Washington over the rights of detainees to challenge their captivity, the Justice Department on Tuesday made a new move to stop the release into the U.S. of any Guantanamo detainee, including one no longer designated an “enemy combatant.”

In a filing in the case of a Chinese Muslim, Huzaifa Parhat(docket 05-1509), the Justice Department argued that no federal court has the authority to order a detainee to be released into mainland U.S.  The filing can be found here.

On Monday, the Department had urged the D.C. Circuit to make clear that no court has the authority to require the Pentagon to move a detainee from Guantanamo to the U.S.  Parhat’s lawyers have moved for immediate release, so that he can live and work in the Washington, D.C., area.  The Circuit Court had ruled that the Pentagon had not justified Parhat’s designation as an enemy combatant.  The Department is no longer disputing that point in court.

Parhat, the Department said in its response on Wednesday, “demandes the most extraordinary remedy imaginable — the privileges of immigration into the United States — when he is not in the United States and has no right to enter the United States.  This Court simply has no authority to order his admission or parole into the United States in contravention of the immigration laws.”

Full post as published by SCOTUSBLOG on August 06, 2008 (boomark / email).