The military commission trial of Hamdan will move forward next week, unless enjoined by a higher court.

Analysis by Lyle Denniston

U.S. District Judge James Robertson refused on Thursday to delay the trial of a Yemeni national on war crimes charges - a trial scheduled to begin next Monday.

The judge issued an oral ruling after a morning hearing and said he would issue a written opinion probably by tomorrow morning so that either side could challenge it in the D.C. Circuit Court if they wished.

The judge said he based his ruling - on a motion filed by Salim Ahmed Hamdan, the detainee best known as the alleged driver of Osama bin Laden - on the fact that Congress and the President had decided that any review of the fairness of a military commission trial should occur after “final judgment” and not before. He also said that a recent ruling by the D.C. Circuit in another detainee’s case [Parhat v Gates, discussed in above posts] made it clear that all of the challenges that are raised against military commission trials can be addressed once the trial is over. He said lawyers for Hamdan had raised “novel and complex” constitutional issues but he did not think he needed to address them at this time.
http://www.scotusblog.com/wp/judge-r...-crimes-trial/


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The somewhat different al-Marri case (he was a foreign national arrested in the US) also was resolved at the Court of Appeals level, in a very divided set of 5-4 opinions, consisting of some 7 separate opinions in 216 pages. The net result was generic approval of the MCA system, with the addition of possible habeas corpus relief upon remand to District Court.

http://www.scotusblog.com/wp/split-d...n-on-al-marri/

Analysis by Lyle Denniston

A federal appeals court on Tuesday upheld President Bush’s power to order the detention of a foreign student living in the U.S., based on claims he had terrorist links, but also ruled that the detainee must be given a new chance to challenge in court his designation as an “enemy combatant” — the basis for holding him.
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Because Judge Traxler’s vote was necessary to make a majority on each part of the ruling, and because he did not sign onto any opinion written by other judges on either part, his 35 pages of rationale generally will be considered the controlling justification for the entire decision. The four judges who voted against presidential authority to order the detention said they would not have ruled on the detainee’s right to challenge his detention, but they nevertheless voted to support Traxler on that point “to give practical effect” to an order to govern further developments in District Court.
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The Traxler opinion concluded that Al-Marri is entitled to “further evidentiary proceedings on the issue” of whether he “is, in fact, an enemy combatant subject to military detention.”

The general rule, the judge said, is that “Al-Marri would be entitled to the normal due process protections available to all within this country,” but that general rule can be offset if the government first shows that it is outweighed by national security and that it would be too burdensome for the government to have to produce stronger evidence to justify a detention, in response to a detainee’s demands for more information from the government.
The al-Marri opinions are here:

http://www.scotusblog.com/wp/wp-cont...arrienbanc.pdf

The actual holding of the Court (what all of the judges could agree on about their disagreements !) was this:

(slip pp.4-5)

PER CURIAM:

Ali Saleh Kahlah al-Marri filed a petition for a writ of habeas corpus challenging his military detention as an enemy combatant. After the district court denied all relief, al-Marri noted this appeal. A divided panel of this court reversed the judgment of the district court and ordered that al-Marri’s military detention cease. See Al-Marri v. Wright, 487 F.3d 160 (4th Cir. 2007). Subsequently, this court vacated that judgment and considered the case en banc.

The parties present two principal issues for our consideration: (1) assuming the Government’s allegations about al-Marri are true, whether Congress has empowered the President to detain al-Marri as an enemy combatant; and (2) assuming Congress has empowered the President to detain al-Marri as an enemy combatant provided the Government’s allegations against him are true, whether al-Marri has been afforded sufficient process to challenge his designation as an enemy combatant.

Having considered the briefs and arguments of the parties, the en banc court now holds: (1) by a 5 to 4 vote (Chief Judge Williams and Judges Wilkinson, Niemeyer, Traxler, and Duncan voting in the affirmative; Judges Michael, Motz, King, and Gregory voting in the negative), that, if the Government’s allegations about al-Marri are true, Congress has empowered the President to detain him as an enemy combatant; and (2) by a 5 to 4 vote (Judges Michael, Motz, Traxler, King, and Gregory voting in the affirmative; Chief Judge Williams and Judges Wilkinson, Niemeyer, and Duncan voting in the negative), that, assuming Congress has empowered the President to detain al-Marri as an enemy combatant provided the Government’s allegations against him are true, al-Marri has not been afforded sufficient process to challenge his designation as an enemy combatant.

Accordingly, the judgment of the district court is reversed and remanded for further proceedings consistent with the opinions that follow.

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The lesson that is beginning to emerge from these cases is that the MCA system itself (that is, trial by military commissions) is holding up fairly well to challenges; but that the courts are very uncomfortable with the CSRT (combatant status review tribunal) process - and with unilateral executive determinations of unlawful enemy combatant status.

In fact, the military judge (Keith J. Allred) in the Hamdan case, found the CSRT process to be deficient for a number of reasons (written opinion issued 17 Dec 2007). He then proceeded to determine Hamdan's status at a de novo hearing (5 & 6 Dec 2007), where both sides presented their proofs on the question of unlawful enemy combatant status vs. PW/POW status. He then entered findings of fact and concluded that Hamdan was an unlawful enemy combatant (written opinion issued 19 Dec 2007).

See, the following for links to Judge Allred's opinions, and new filings in the Hamdan MCA trial:

http://www.defenselink.mil/news/commissionspress.html

http://www.defenselink.mil/news/commissionsHamdan.html