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Defendant's Mootness Brief Available in Hamdan

Wells Bennett
Tuesday, June 5, 2012, 2:41 PM
You'll recall that the three-judge panel in Hamdan v.

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You'll recall that the three-judge panel in Hamdan v. United States - or, gauging by the questions at oral argument, really only Judge Douglas Ginsburg - was interested in whether the defendant's release from custody had mooted his appeal.  During argument, the government had agreed with the defendant's lawyers that the case was not moot, and thus could proceed; nevertheless, and perhaps out of deference to Ginsburg, Chief Judge David Sentelle sought further briefing on the issue. That brings us to the post-hearing brief, which Hamdan's attorneys filed yesterday.  The document essentially reiterates, albeit in greater detail, the position that Hamdan took before the panel last month.  In short, Hamdan's lawyers say that the Supreme Court's Sibron case applies, and presumes that collateral harms indeed will arise from Hamdan's conviction for material support for terrorism.  That means the case embodies a real dispute for the panel to resolve - and isn't moot.  Moreover, argue the attorneys, the prosecution has made no effort to meet the high standards required in order to rebut the Sibron presumption (and couldn't if it tried). Lyle Denniston has the brief, and coverage of it, over at SCOTUSblog.  Chief Judge Sentelle's order called for a response for the government, which will be due next month.  Hamdan thereafter will have the right to file a reply. As Steve andboth mentioned earlier, one key question posed by the mootness issue is this: will Ginsburg eventually insist that no live controversy remains, and thus split the panel - with Chief Judge Sentelle voting to affirm, and Judge Kavanaugh voting to reverse?  UPDATE [4:04 p.m]:  Ben correctly points out another intriguing possibility, that Ginsburg's mootness concerns might evaporate - and that he would supply the vote needed for a majority to decide the case's merits.

Wells C. Bennett was Managing Editor of Lawfare and a Fellow in National Security Law at the Brookings Institution. Before coming to Brookings, he was an Associate at Arnold & Porter LLP.

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