Two “Detainees” Seek Expedited Hearing from Supreme Court

Brian Zick

Lyle Denniston at SCOTUSblog reports: Two Guatanamo Bay detainees, both facing war crimes charges before U.S. military “commissions,” on Tuesday asked the Supreme Court to put their joint appeal on a fast track for decision in the current Term. The motion to expedite involves the first two rulings by federal courts on Congress’ move last year to strip the federal courts of any authority to hear habeas challenges by prisoners at the military prison camp at Guantanamo Bay, Cuba. (…) Putting the court-stripping issue before the Court in the new case are Salim Ahmed Hamdan, a Yemeni national who was the detainee in last Term’s decision in Hamdan v. Rumsfeld nullifying a White House version of new military commissions, and Omar Khadr, a Canadian national. On Feb. 2, the Pentagon notified both of them (along with an Australian, David Hicks) of new charges they will face at war crimes trials. (…) Since the lower court rulings take away any constitutional protection for detainees, the motion argued, they cannot prepare for trial "as they do not even know if due process and other fundamental rights secured by the Constitution will govern their trial and punishment. Such uncertainty, in turns, makes a plea nearly impossible." "Expediting review would serve the dual purpose of prompt determination of the legality of the jurisdiction-stripping provisions of the MCA in the two related contexts in which it is presented" -- for those facing war crimes charges, and for those detained as "enemy combatants, the motion said. In the Pentagon's Feb. 2 notice of the new charges, it said Hamdan was accused of conspiracy and providing material support for terrorism, and Khadr was accused of those same two offenses, as well as spying, murder and attempted murder. The conspiracy charge appears close to the same accusation that four Justices of the Supreme Court found wanting in last Term's decision in Hamdan's case.

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