Military defense lawyers to file amicus brief in Gitmo caseEric Muller
points us to an intriguing Law.Com article
about some of the defense attorneys in the Pentagon's Office of Military Commissions (which falls under the Office of General Counsel) who are planning to file an amicus brief in the the Al-Odah v. United States case now before the U.S. Supreme Court. Admittedly, this is an unorthodox move for someone in the government to speak out on a pending Supreme Court case, and especially for them to oppose the government position.
In an unusual move that will place them at odds with their commander in chief, uniformed military defense lawyers in the Pentagon's Office of Military Commissions are preparing an amicus brief in the Guantanamo habeas case supporting detainees who are seeking federal court review of their detentions, say sources familiar with the brief. Analysis
The defense team, led by Air Force Col. Will Gunn, is likely to argue that preserving ultimate Supreme Court review is essential to the integrity of military commissions, according to those sources. Gunn declined to comment.
* * *
On Nov. 10, the Supreme Court agreed to review a March 2003 ruling by the U.S. Court of Appeals for the D.C. Circuit that federal courts lack jurisdiction to review the detentions of Hicks and several other prisoners at Guantanamo. The justices are currently considering whether to take up Hamdi's petition.
Lawyers involved in the cases say that allowing Hicks and Hamdi to consult with lawyers now signals that the administration may be responding to the pressure of judicial review.
"This happened because the Supreme Court said it might have jurisdiction. It would never have happened otherwise," says Thomas Wilner, a partner in the D.C. office of New York's Shearman & Sterling who represents 12 Kuwaiti citizens held at Guantanamo Bay in the case before the Supreme Court. "It's a shame the administration needs to be put under pressure to do what's right. Allowing someone to see a lawyer should be the normal course of events."
Former DOJ official John Yoo, who analyzed legal issues related to terrorism and detentions as an attorney in the DOJ Office of Legal Counsel, says he does not feel that the administration is attempting to influence the Supreme Court.
"I see this as a sign of a system that is still developing," says Yoo, a visiting professor at the University of Chicago Law School. "There is always going to be a fundamental tension between the purpose and processes of our criminal justice system and the military-intelligence world. We're still figuring out what rules apply."
: I'll try to find the amicus brief and parse it for legal issues later today, because I'm interested in what it has to say. But politically, I think the analysis here is quite simple. The OMC lawyers received permission (and they had to get permission) from the Pentagon to do this. The reason they got permission is because the Pentagon wants to boost the legitimacy -- in any way it can -- of the detentions and military commissions at Guantanamo Bay. Allowing military defense attorneys to file an amicus brief like this only raises their credibility as independent defense counsel, and shows the world that the Pentagon isn't quite so monolithic on this issue. I'm not sure if this strategy will be effective or not, in a political sense. But if the success of Carter Phillips' "green brief" in Grutter v. U.Michigan is any indicator, the Court may be open to hearing unconventional uniformed points of view.Update
: I can't find a draft of the amicus brief, although I can guess what it's going to say based on the arguments against military commissions that I've read recently. A number of the "insider" pieces on the subject are available from the National Institute of Military Justice's webpage
, which is a great resource on the subject. (See the November 2003 issue of Military Lawyer
for some great articles on the subject, including one by the head prosecutor in the Office of Military Commissions defending the tribunals) Here are some of the general arguments I'd expect to see from the OMC defense attorneys. (This is a SWAG on my part)
(1) America's federal courts should be available as an avenue of collateral attack for any
detentions by the American government, whether they are military or criminal in nature. There is no principled way to distinguish the terrorism cases which fall on the seam of law and war, and we should resolve this gray area by allowing all of these detainees to at least challenge their detention through the habeas corpus procedure. This is the basic issue before the Court in Al-Odah v. United States
-- whether federal courts have jurisdiction to hear the challenges of the men at Guantanamo. Using a panoply of sources from international law, domestic law, and military law, I expect the military defense attorneys to argue that federal courts should
have such jurisdiction.
(2) In order to facilitate the detainees' petition for habeas corpus, they must have access to legal counsel. The OMC lawyers will likely argue that the Constitution guarantees the right to counsel, and that it must be observed even at Guantanamo. The OMC lawyers will probably also argue that they are uniquely qualified to mitigate any risks the government is concerned with. As JAG officers, they all have security clearances, and can presumably be trusted to deal with the classified information and security issues inherent in these detainees' petitions. At the same time, these JAG officers can be trusted to serve the needs of their clients -- the detainees. This will likely be a part of the OMC amicus brief as well.
(3) [New] The OMC lawyers will also argue that the Treaty Clause (see Art. VI
) of the Constitution compels the United States to follow the letter of the 3rd Geneva Convention
-- something which has not been done with the Gitmo prisoners. Setting aside any normative issues about the Gitmo detentions, we have not complied with Art. V
of the 3rd GC with respect to having "competent tribunals" adjudicate whether these men are lawful prisoners of war or not. As a historical footnote, we held thousands of such tribunal during Gulf War I -- it's practically a METL task for JAG officers to know how to do 'em. I think this is a pretty solid argument too.
(4) Ultimately, the OMC lawyers will argue that President Bush's order
establishing military commissions is unconstitutional. If the order is unconstitutional, then any verdicts given down by military commissions under the order will be invalid, thus exonerating the OMC lawyers' clients. This argument will take a number of forms.
- Initially, the OMC lawyers will argue that this order is an unconstitutional extension of Presidential power under Art. II
, and that it infringes on Congressional power under Art. I to "make Rules for the Government and Regulation of the land and naval Forces". I think this is a pretty solid argument, although the Court may cite Rostker v. Goldberg
for the proposition that it should stay out of issues between the "political" branches.
- Next, the OMC lawyers will make a more specific argument that the 13 Nov 01 order
is unconstitutional because it goes beyond the authorization of Congress in Public Law 107-40
(the post-9/11 joint resolution authorizing force in response to those attacks). It's relatively well settled law that the President does not need a declaration of war to commit military forces, but the OMC lawyers will probably argue that all of the government's precedents (e.g. Quirin
) were decided when there actually was a declared state of war.
- Finally, the OMC lawyers will argue that the military commissions usurp the authority of the Art. III
courts to hear "...all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made...to Controversies to which the United States shall be a Party...". The OMC lawyers will argue first that Congress has created military courts to deal with both violations of the UCMJ and violations of the laws of war, and that such courts should be used. In the alternative, the OMC lawyers may argue that the military commissions obviate the power of U.S. federal courts to hear these cases and controversies that would normally fall within their jurisdiction. (But see Johnson v. Eisentrager
) And third, the OMC lawyers will argue that the federal courts should have appellate jurisdiction over the verdicts produced by military commissions. This argument will extend to the U.S. Supreme Court, which "In all the other Cases before mentioned . . . shall have appellate Jurisdiction, both as to Law and Fact".
Ironically, this last point puts the OMC lawyers in direct conflict with both the White House and the Solicitor General's office. It puts the OMC in conflict with the White House because the 13 Nov 01 order expressly precludes the possibility of civilian judicial review, by either the federal appellate courts or the U.S. Supreme Court. This last point will also put the OMC lawyers in direct conflict with the Solicitor General's office. In the SG's Al-Odah brief
, they argue that the issue of military commissions is not relevant to this case, because the Court is only hearing argument on whether federal courts shall have jurisdiction to hear challenges to the detentions at Gitmo. Footnote 4 of the SG's brief states:
FN4. The petition states only one other claim: that, "[t]o the extent that [the President's Military Order of November 13, 2001 (see C.A. J.A. 22-27)] disallows any challenge to the legality of [Hamdi's] detention by way of habeas corpus, the Order and its enforcement constitute an unlawful suspension of the Writ." Id. at 13 (Pet. ¶ 25). As respondents have explained (see id. at 47), that claim is without merit. By its terms, the President's Military Order (§ 2(a)) applies only to non-citizens whom the President determines "in writing" to be subject to the Order. The Military Order accordingly does not apply to a presumed American citizen such as Hamdi, and in any event the President has not made any determination that Hamdi is subject to the Order.
The SG is trying to take military commissions off the table in the Al-Odah case, and they'll probably be successful because the Supreme Court only granted cert on the narrow issue of federal jurisdiction. But that doesn't mean that amicus curae are not going to raise this issue in their briefs. It's just a little odd for the left arm of the Executive Branch (trial defense lawyers in OMC) to directly dispute the legal argument of the right arm of the Executive Branch (the SG's office).Clearly, the OMC lawyers are looking to shape the battlefield for future legal battles
. They are laying the groundwork for future appeals on behalf of their future clients -- the detainees at Gitmo who may eventually be charged and convicted before military commissions. After these convictions, the OMC lawyers will undoubtedly try every possible avenue of appeal, to include the military courts of appeals and the federal court system. Ultimately, the OMC lawyers will take their arguments to the Supreme Court if any of their clients are convicted. This case offers them a chance to test their arguments, and to possibly elicit some positive caselaw from the Court in its Al-Odah decision. Not a bad strategy.