Today marks the five-month anniversary of the oral arguments before the D.C. Circuit in United States v. Hamdan, the first post-conviction appeal to reach the Court of Appeals under the Military Commissions Acts of 2006 and 2009 (and about which we had just a couple of posts). Five months have elapsed, and, surprisingly, there’s no sign of the decision.
Five months from argument to decision is unusually slow for the D.C. Circuit under normal circumstances. But it’s only the more so here given that this is a court that usually tries to wrap up the previous Term’s business by August 31 (and that, like the Supreme Court, doesn’t hear arguments for much of the summer). Adding to the confusion, we flagged the D.C. Circuit’s August 22 order suspending the argument in al-Bahlul (the second post-MCA appeal, which had been scheduled to be heard on September 10), which both of us took as a sign that the decision in Hamdan might be imminent—and that was six weeks ago today. To be sure, the court ordered supplemental briefing on the mootness question after the oral argument, but even that briefing, on which the parties reached the same conclusion, wrapped up in June.
So where is Hamdan? Obviously, we have no idea. But one thing is clear: the more time elapses without a decision in Hamdan, the more it adds to the uncertainty that continues to loom over the military commissions at Guantanamo, including the 9/11 trial (in which pretrial proceedings are set to resume after a Hurricane Isaac-caused delay on October 15), and the follow-on proceedings (such as al-Darbi). And given the distinct likelihood that, whatever the D.C. Circuit rules, the party on the short side will seek either rehearing en banc or Supreme Court review, it’s not as if this panel is going to have the last word on the difficult questions raised by Hamdan’s appeal.
What is especially ironic about how long this process has taken is Judge Robertson’s ruling, back in July 2008, abstaining from resolving Hamdan’s pre-trial challenge to the commission entirely because the system Congress created in the MCA was in a position adequately and expeditiously to resolve his claims. Reasonable folks may well disagree about the adequacy of the appellate remedies provided by the MCA; no one can seriously claim that they’ve been expeditious, whether before the Court of Military Commission Review or the D.C. Circuit.