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Professors Jonathan Hafetz & Jenny Carroll

‘On the Brief’ as Amicus Curiae in Historic Win on Hamdan II Case

Professors Jonathan Hafetz and Jenny Carroll co-authored an Amicus Curiae brief along with lawyers from Gibbons P.C., Lawrence S. Lustberg and Jonathan Manes, and Professor David Cole of the Georgetown University Law Center, in the historic win before the United States Court of Appeals for the District of Columbia Circuit in Hamdan v. United States.

The amicus brief was written on behalf of the Japanese American Citizens League, Asian American Legal Defense and Education Fund, National Asian Pacific American Bar Association, and the Asian Law Caucus.

Hailed as a major victory by the Guantanamo bar and civil rights advocates, in Hamdan II the United States Court of Appeals for the District of Columbia Circuit ruled unanimously to vacate the conviction and sentence of Salim Hamdan, citing ex post facto concerns in interpreting the law under which Hamdan was convicted for material support for terrorism— given that the charge itself was not cognizable as a war crime triable by military commission at the time Hamdan was said to have engaged in such action. A number of other Guantanamo detainees are similarly situated.

Professor Jonathan Hafetz, who has served as counsel in such major national security detention cases as Al-Marri v. Spagone, Munaf v. Geren and as a member of the legal teams in Boumediene v. Bush and Rasul v. Rumsfeld, noted that the court’s decision in Hamdan II “is a tremendous victory for the rule of law, bringing us one important step closer to justice too long denied.”

The appellant, Salim Hamdan, was the subject of the landmark 2006 Supreme Court decision, Hamdan v. Rumsfeld, in which the Court ruled that the military commissions as constituted were illegal because, among other things, they did not meet the minimum standards of fairness required by U.S. military law and the Geneva Conventions. Although since revised, the military commissions still afford fewer procedural protections and fair trial guarantees than either U.S. federal court trials or military courts-martial. After the Supreme Court’s decision, Hamdan himself was recharged under a revised military commission scheme and found guilty of one count of providing material support to a terrorist organization, but was not found guilty of supporting any specific terrorist plot or act. He was sentenced to five months beyond the 61 months he had already served at Guantánamo. Hamdan has since finished serving his sentence and returned home to Yemen, but continued to appeal the legality of his trial and conviction.

Professor Jenny Carroll, who served as Academic Director of the Ohio Innocence Project and as a Public Defender in Seattle prior to coming to Seton Hall Law, stated “Process is important in any system that purports to be a system of justice. In this case, important rights have been vindicated for this defendant— and others.” Brief co-author Lawrence S. Lustberg of Gibbons P.C., agreed, saying “This case is historic in placing limitations on government action, and preventing the incremental, but significant, erosion of the civil rights embedded in our Constitution.”

The decision to vacate Hamdan’s sentence has been hailed by many as historic, with wide-reaching implications for further detainee prosecutions.

Read Professor Hafetz' article at Balkinization, “Hamdan and the Continuing Quandary of Military Commissions”


Read the United States Court of Appeals for the District of Columbia Circuit Opinion


Read a feature Star Ledger article on the Amicus brief, “Attorneys, Seton Hall professors claim commissions discriminate against non-citizens alleged to be terrorists”


Read the amicus brief