This Just In: A Need for Better Explanatory Graphics

A federal judge ruled that the military tribunals in Gitmo can proceed under the MCA, the Congressionally-designed legal proceedings that deal with "enemy combatants." When I first saw this, I was very confused. Didn't the Supreme Court rule in Boumediene that detainees had standing to bring habeas challenges in normal US courts? Well, turns out that many judges are reading Boumediene rather narrowly. So although detainees that are being held without charges can challenge their detentions in habeas proceedings in US courts per Boumediene, if formal criminal charges have already been leveled, as in Hamdan's case, under the MCA, an appeal can only occur once a final judgment has been rendered in a military trial. I'm still trying to wrap my head around all this but maybe this rudimentary flow chart that I worked out will be more helpful than the previous, clunky, clause-ridden sentence.

Hamdan was charged with war crimes --> MCA trial to go forward --> Hamdan moves to delay the trial, challenging the constitutionality of the MCA tribunals, asserting Hamdan's right to a habeas proceeding in US court, and arguing that the war crimes charges are actually ex post facto laws* --> a great Judge (who originally ruled against Bush's detention powers) rules that because there are pending criminal charges against Hamdan, under the MCA, his case has to proceed in Gitmo's military court and that any appeals must come after a final judgment has been rendered.

*The ex post facto claim went before a military judge as part of a separate defense strategy.

I guess the most important thing to remember is the distinction between Hamdan's defense arguments. On the one hand, his lawyers assert that he is being unlawfully detained. Thus, under Boumediene, he should get a habeas trial. On the other hand, Hamdan is challenging the constitutionality of the military tribunals to hear his case (mostly because of evidentiary deficiencies).

I find the ex post facto claim to be the most perplexing because it looks like the courts will sanction the MCA legal proceedings as long as criminal charges are made against the detainees. Will some of the 240 detainees pursuing habeas claims in light of Boumediene suddenly find themselves charged with war crimes, thereby nullifying their habeas proceedings and sending their cases straight to the tribunals? That the issue of ex post facto charges went before a military tribunal in Hamdan's case is also distressing. One of the biggest problems with the tribunals is that they have a vested interest in trying these cases, and, many cynics would say, returning guilty verdicts in order to vindicate the entire Gitmo detention program.