I have a longer preview of Thursday's D.C. Circuit argument in Hamdan in the works, but wanted to jump in to offer a couple of quick thoughts on the (surprising) argument order issued by the panel today (which Raff just posted), asking the parties to be prepared to address whether Hamdan's appeal of his conviction is moot. In a nutshell, although the panel is free to ask the parties to address whatever it wants, I just don't see even the shred of a mootness issue here. If anything, there's a profound (and potentially perverse) irony in even suggesting that Hamdan's appeal is moot--one which I elaborate upon below the fold.
Presumably, the mootness concern stems from the simple fact that Hamdan is no longer serving his sentence (and hasn't been for awhile), nor is he on parole or any other form of supervised release. By all accounts, he's free in Yemen, and so he presumably has little stake in continuing to challenge his underlying conviction by a military commission. But before folks get too enamored with this argument, it might be helpful to remind ourselves what the Supreme Court has said on the subject:
The Court has long grappled with the problem that arises from appeals of criminal convictions in cases in which the sentence is completed while the appeal is pending. As Chief Justice Warren explained in Sibron v. New York, there are two exceptions to mootness that come to bear in such cases: (1) cases in which the defendant "could not have brought his case to [the Supreme] Court for review before the expiration of his sentence"; and (2) cases "where ‘under either state or federal law further penalties or disabilities can be imposed * * * as a result of the judgment which has * * * been satisfied.'"
As Warren explained with regard to the first exception,
Many deep and abiding constitutional problems are encountered primarily at a level of ‘low visibility’ in the criminal process—in the context of prosecutions for "minor" offenses which carry only short sentences. We do not believe that the Constitution contemplates that people deprived of constitutional rights at this level should be left utterly remediless and defenseless against repetitions of unconstitutional conduct.
So the first exception is cases in which things happened too quickly to allow for a full appeal, especially if the defendant's claims are constitutionally grounded. And the second Sibron exception is akin to the "collateral consequences" doctrine in post-conviction habeas jurisprudence. Admittedly, that's where things get a little trickier:
In Spencer v. Kemna (the other Supreme Court decision cited in today's order) the Supreme Court held that, in habeas cases, courts should not assume the existence of collateral consequences from any criminal conviction, and that the burden should be on the habeas petitioner to prove that such circumstances exist. And in the Second Circuit case cited by today's order, the Court of Appeals held that a non-citizen couldn't necessarily invoke future bars to immigration admissibility as a collateral consequence if he would be inadmissible even if the conviction were thrown out. So that's clearly what the panel is thinking here, along the lines of the D.C. Circuit's reasoning in Gul v. Obama for why former Guantanamo detainess may no longer press habeas petitions challenging their prior detention. [In short, Gul held that, to the extent former Guantanamo detainees face any collateral consequences, those consequences arise from their being detained at Guantanamo, whether rightly or wrongly. Thus, one might argue that Hamdan's collateral consequences are based more on his detention and trial than specifically on his conviction.]
But if that's the argument, it falls on the critical distinction between direct appeals and post-conviction habeas. After all, the whole point of Justice Scalia's collateral consequences analysis in Spencer v. Kemna was that a habeas petitioner must show such consequences in order to have Article III standing to pursue his habeas petition--a suit in which he is the plaintiff (note in this regard that the Second Circuit case cited in today's order from the Hamdan panel was also a post-conviction habeas petition). Here, Hamdan is the defendant, and so the only issue is standing to appeal, a far lower threshold which Hamdan clearly satisfies by virtue of the "injury" inflicted upon him by the decision below. Put another way, whatever mischief Spencer has caused in the context of the "collateral consequences" doctrine, nothing in Spencer itself suggests that it applies to direct appeals as well as collateral post-conviction relief.
But even if one disagrees (and further believes that Hamdan can't show collateral consequences arising specifically from his conviction that are separate from those arising from his detention at Guantanamo), the other Sibron exception still matters, i.e., whether Hamdan had an earlier opportunity to contest the military commission proceedings. [Again, the difference between direct appeals and habeas matters--this exception is by definition beside the point in habeas cases, because the direct appeal was the first opportunity!]
And here's where the irony comes in. Readers may vaguely recall that, on the eve of his military commission trial in July 2008, Hamdan did indeed seek to challenge the military commission proceedings through a habeas petition filed in the D.C. district court. [Full disclosure: I was co-counsel on that habeas petition.] Although I've argued before that his analysis in denying Hamdan's claims was deeply flawed, Judge Robertson held that the civilian courts ought to abstain in favor of the military commission proceedings. And to the concern that this would prevent Hamdan from vindicating his rights, Judge Robertson rested on the belief that any challenge Hamdan sought to raise could theoretically be vindicated both in the trial court and, if necessary, on post-conviction appeal:
A real judge is presiding over the pretrial proceedings in Hamdan's case and will preside over the trial. He will have difficult decisions to make, as judges do in nearly all trials. The questions of whether Hamdan is being tried ex post facto for new offenses, whether and for what purposes coerced testimony will be received in evidence, and whether and for what purpose hearsay evidence will be received, are of particular sensitivity. If the Military Commission judge gets it wrong, his error may be corrected by the CMCR. If the CMCR gets it wrong, it may be corrected by the D.C. Circuit. And if the D.C. Circuit gets it wrong, the Supreme Court may grant a writ of certiorari.
Thus, given that Hamdan's efforts in 2008 to obtain review of the commission proceedings were turned away entirely because of the availability of post-conviction appellate review, it would be beyond ironic for the D.C. Circuit to now turn around and hold that his direct statutory appeal of his conviction is moot.
Finally, although I'll say a bit more about this in my more comprehensive preview (which I hope to post tomorrow or Wednesday), mootness wouldn't accomplish much here, anyway. Although there are important differences between Hamdan's appeal and that of Ali Hamza Ahmad Suliman al Bahlul (whose appeal is scheduled to be argued in the D.C. Circuit in September), the central question raised in Hamdan re: Congress's power to subject certain offenses to trial before military commissions is also presented there. So ducking this case on (incorrect and ironic) mootness grounds would ultimately only delay the inevitable.
But, if nothing else, today's order will make Thursday's oral argument that much more interesting.