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Misc. No. 08-8013/NA. In Re Ali (a.k.a. Anwar Hassan), Thabid (a.k.a. Dawut Abdurehim), Adel Noori, Abdulghappar Abdulrahman, Ahmad Tourson, and Abdul Razakah, Presumptive Prisoners of War, Guantanamo Bay Detainees, Petitioners v. United States, Respondent. Notice is hereby given that a petition for extraordinary relief in the nature of a writ of prohibition and writ of mandamus was filed under Rule 27(a) on February 27, 2008, and placed on the docket this date. On consideration thereof, it is ordered that the United States is substituted as Respondent; that the Judge Advocate General of the Navy appoint counsel to represent Respondent; and that Respondent show cause on or before March 24, 2008, why the requested relief should not be granted.
Here's a link to the petition, courtesty of NIMJ's web site.
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13 comments:
Looks like Gitmo detainees are trying to use the CAAF's drive-through writ service. Next we'll see writs filed in the CAAF by Michael Vick and Leslie Van Houten.
The petition can be found on NIMJ's website, www.nimj.org.
Oh boy. Now anyone who claims to be both subject to the UCMJ and punished without a trial can seek writ relief from he CAAF. Taken to its extreme, I guess a soldier could seek a writ under this theory if he thought his CO was "picking on him" even though there was no crime involved. Which is the second craziest writ jurisdiction theory I've heard this week (wink).
Writ-o-palooza
While I usually enjoy sarcasm, I'll opt-out on this one. Show some respect for the writ. Its more American than baseball and apple pie, and preceded both.
And CAAF can always say "no."
If stupid lawsuits and stupid arguments somehow undermined the logical foundation of a judicial forum, then most court's would cease to be. "Oh boy. Now anyone who claims to be injured by a hot cup of coffee can sue." Yes. That and a million other actions, from poorly dry-cleaned pants to torture. Judges get paid for this job. Its called a court of law.
Drive through writ service? JOC, you are slipping. In December, Judge Allred correctly ruled in Hamdan's case before a military commission that detainees are presumptively POW's until they are given an article 5 status hearing in accordance with the Geneva Conventions. Since POW's are subject to the UCMJ by international and Article 2 of the UCMJ itself, why is the CAAF not the appropriate place to file a writ to enforce their privileged status?
The soldier whose CO was picking on him would have as much of a claim before the CAAF as the cookie litigation that we discussed here some months ago. However, I suspect that if a CO kidnapped one of his soldiers while he was on liberty and held him incommunicado for six or seven years that CAAF may seek at least the explanation that it has sought here.
Guert:
I always respect yuor opinions, so I wonder in the kidnapping example how this is in aid of the CAAF's jurisdiction? Or are we back to the "we're the head of the military justice system, so we can do about anything tengentially connected with military justice" line of thought. I think the correct place to start would be either an Article 136 complaint, requesting mast, or a Congrint. The CAAF is not a roving commission empowered to correct all ills in the military.
How does a detainee request an audience before the Mast? Who is his commanding officer? Similarly, to whom does he submit his Article 138 complaint? Article 13 provides that no person shall be punished before trial. Nearly every detainee at GTMO is held in a maximum security facility where they are kept in solitary confinement for 23 hours a day. The facilities look nothing like the POW camps of World War II. Many provisions of the UCMJ are not applicable to the presumptive POW's held at GTMO, but Article 13 protects "all persons" subject to the Code. Where would you have the POW's file litigation seeking enforcement of the Code's prohibition against illegal pretrial punishment?
But Guert, if the problem is that if someone is so confined that he or she can't request mast, file an Article 136, or file suit in an Article III court, then he or she can't file a CAAF writ either.
The CAAF, though certain judges have thought otherwise over the years, is not the general overseer of the UCMJ. It's jurisdiction is limited to reviewing the findings of courts-martial where the punishment exceeds a certain statutory threshold. The CAAF does not have jurisdiction to intervene whenever someone claims that Article 13 has been violated.
"Judges are not given the task of running the Army." Orloff v. Willoughby, I think.
JO'C, do you have a citation for your statement: "[CAAF]'s jurisdiction is limited to reviewing the findings of courts-martial where the punishment exceeds a certain statutory threshold"? Your postings are constant on this theme. I also think your statement: "The CAAF is not a roving commission empowered to correct all ills in the military," is catchy.
But while this you advance an elegant theory, it seems to me to be a bit of an understatement of jurisdiction.
When you strip the polish off of your argument, aren't you just like Andrew Jackson saying, "Justice Marshall has made his decision, now let him enforce it"? In other words, aren't these questions of power inherent in the judicial function...and not really stemming from the UCMJ?
Anon,
I must confess to being surprised that CAAF issued a show cause order. Here's a quote from Clinton v. Goldsmith that directly supports JO'C's formulation of CAAF's jurisdiction:
"Because [CAAF's] process was neither 'in aid of' its strictly circumscribed jurisdiction to review court-martial findings and sentences under 10 U.S.C. § 867 nor 'necessary or appropriate' in light of a servicemember's alternative opportunities to seek relief, we hold that the Court of Appeals for the Armed Forces lacked jurisdiction to issue the injunction." Clinton v. Goldsmith, 526 U.S. 529, 531 (1999).
Regardless of adequacies of alternative opportunities to seek relief in this case, the requested relief does not appear to fall within CAAF's "strictly circumscribed jurisdiction to review court-martial findings and sentences under 10 U.S.C. § 867."
Last Anon,
As CAAFlog said, I'll go with Article 67.
Any word on what's going on with this?
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