Court to rule on military tribunals
The Supreme Court on Monday agreed to rule on the constitutionality of the special military tribunals President Bush created to try war crimes charges against terrorist suspects who are foreign nationals — a major test of presidential wartime authority. The action demonstrated that the Court has a keen interest in basic legal questions surrounding the war on terrorism, and, in particular, questions of presidential authority to deal with those who are rounded up as “enemy combatants.”
Here is the Order List.
The Court, returning to a sensitive issue in U.S. relations with foreign governments, also agreed on Monday to decide whether state courts in tne U.S. may refuse to hear claims by foreign nationals of violations of the Vienna Convention on consular rights. At issue is a treaty that assures foreign citizens who are arrested as criminal suspects a right to meet with a consular officer from their home country. That right has been routinely violated in state criminal cases in the U.S., and the World Court has twice ruled that the U.S. must take action to remedy those violations. The Supreme Court had agreed to rule on that issue last Term, but disposed of that case (Medellin v. Dretke) without deciding the questions. The issue arises anew in two cases — Sanchez-Llamas v. Oregon (04-10566) and Bustillo v. Johnson (05-51). They were consolidated for one hour of argument.
In a third grant, the Court took on a case testing the treatment in bankruptcy cases of workmen’s compensation. At issue is whether a claim for unpaid premiums due on a workmen’s compensation liability insurance policy is entitled to priority-debt status. The issue has divided the lower courts. (Howard Delivery Service v. Zurich American Insurance Co., 05-128.)
In the war tribunals case, Hamdan v. Rumsfeld (05-184), Chief Justice John G. Roberts disqualified himself from the order granting review; he had sat on the D.C. Circuit panel that upheld the so-called “military commissions.” He had told the Senate Judiciary Committee when he was nominated that he would recuse himself from cases in which he had participated as a judge on the D.C. Circuit.
The Court’s agreement to hear the case was a bit of a surprise. The Justices had considered the case at three previous Conferences, and had taken no action, leading to speculation that review would be denied. But the Court, in a simple order Monday, agreed to hear the case, indicating that it would be decided during the Court’s current Term — by eight Justices. The order noted the Chief Justice’s recusal.
The case, along with the two others granted on Monday, is expected to be heard in March. By that time, it appears likely that the Supreme Court will have a new Justice, replacing retiring Justice Sandra Day O’Connor. If nominee Samuel A. Alito, Jr., is confirmed by the Senate early in the year, as is now expected, he could be on the Court in time to take part in deciding the Hamdan case. Should the Court divide 4-4 in the decision, that would uphold the D.C. Circuit, but would not finally resolve the issues of constitutional and international law raised against the military commissions. It would mean, however, that the commission trials could then go forward. The Pentagon is not expected to open any such trials until after the Supreme Court decides the Hamdan case. The trials have been held off because of the legal uncertainty surrounding them.
Here are the questions the Court will consider in the appeal by Salim Ahmed Hamdan, a Yemeni national:
“1. Whether the military commission established by the President to try petitioner and others similarly situated for alleged war crimes in the ‘war on terror’ is duly authorized under Congress’s Authorization for the Use of Military Force (AUMF), Pub. L. No. 107-40, 115 Stat. 224; the Uniform Code of Military Justice (UCMJ); or the inherent powers of the President?
“2. Whether petitioner and others similarly situated can obtain judicial enforcement from an Article III court of rights protected under the 1949 Geneva Convention in an action for a writ of habeas corpurs challenging the legality of their detention by the Executive branch?”
In Monday’s order granting review of the cases testing the consular rights of foreign nationals faced with criminal charges in U.S. state courts, the Justices agreed to review three related questions.
In the Sanchez-Llamas case, from Oregon. questions 1 and 2 in the petition:
“Does the Vienna Convention convey individual rights of consular notification and access to a foreign detainee enforceable in the courts of the United States?
“Does the state’s failure to notify a foreign detainee of his rights under the Vienna Convention result in the suppression of his statements to police?”
In the Bustillo case, from Virginia, question 1 in the petition:
“Whether, contrary to the International Court of Justice’s interpretation of the Vienna Convention on Consular Relations, April 24, 1963, 21 U.S.T. 77, 100-101, state courts may refuse to consider violations of Article 36 of that treaty because of a procedural bar or because the treaty does not create individually enforceable rights?”
In other orders, the Supreme Court agreed to allow the U.S. Solicitor General to join in oral arguments on two abortion cases. In Ayotte v. Planned Parenthood (04-1144), the SG will be arguing that facial challenges to abortion restrictions must be judged by the same strict standard as all other facial challenges except those involving First Amendment claims, and that there is no constitutional necessity for a health exception to an abortion restriction. In Scheidler v. NOW (04-1244), the SG will be arguing that the Seventh Circuit should have disposed of this continuing case on blockades of abortion clinics by ruling that the Hobbs Act does not provide protection against such blockades. Those cases will be argued on Nov. 30.
The SG also will be allowed to take part in Wachovia Bank v. Schmidt (04-1186), on the domicile of national banks for federal court diversity jurisdiction, and Hudson v. Michigan (04-1360), on an “inevitable discovery” exception to the exclusionary rule in criminal cases.
Among cases in which review was denied on Monday, two were among the more interesting:
In Cincinnati v. Barnes (05-292), the Court refused to hear the Ohio city’s appeal contending that Title VII, the federal law against sex bias in the workplace, does not apply to claims of sex stereotyping — that is, discrimination based on the view of supervisors or co-workeres that a worker does not conform to the usual conduct of persons of that sex. The case involves a transsexual police officer who failed to get a promotion to sergeant.
In McSally v. Rumsfeld (05-40), the Court declined to hear a plea for recovery of attorneys’ fees by the Air Force lieutenant colonel, Martha McSally, who succeeded in overturning an Air Force policy requiring females serving in Saudi Arabia to wear a head scarf when they left their duty station. The D.C. Circuit ruled that McSally was not entitled to a fee-shift because the policy was overturned by Congress, not in her court case.
You use the phrase “so-called military commissions.” That seems a bit derogatory. Do you mean to say that they are not in fact military commissions? I would suggest they are in fact military commissions and there is no need to use the words “so called.”
Comment by John N. — November 7, 2005 @ 10:44 am
The implication — to me at least — is that the tribunals are not authentic military commissions, i.e., they lack the basic procedural safeguards that military commissions usually have. But I agree. The mere fact that my car is a hybrid does not mean it is not a car.
Comment by Commentator — November 7, 2005 @ 11:01 am
I know that Roberts recused himself from Hamdan. Is there an established ethical rule that required him to do so?
Supreme Court Justices routinely hear cases in which their views of the underlying legal question are already well known. Justice Rehnquist dissented from Roe v. Wade, and he continued to express his disapproval of that decision every chance he got. Justice Blackmun was equally emphatic in his continued support of it. One could not say that either justice’s vote was truly ‘in play’ whenver a new abortion case arrived at the Court.
Why, then, must Roberts recuse himself in Hamdan?
Comment by Marc Shepherd — November 7, 2005 @ 11:22 am
Roberts must recuse himself from Hamdan because Alito has not been confirmed yet. If he breaks his promise while Alito has yet to be confirmed, then it will make is doubly hard for Alito to join him on the Court. And then the Catholic Justice League cannot fight the good fight.
Comment by Commentator — November 7, 2005 @ 11:45 am
I don’t think that the federal statute involved, 28 USC 455, requires Roberts to recuse himself from Hamdan. However, he did promise to the Judiciary Commmittee that he would recuse himself from cases he participated in on the DC Circuit.
Comment by John N. — November 7, 2005 @ 12:06 pm
Concerning Roberts’s recusal from Hamdan. I had thought that Roberts was following invariable practice, presumably part of the “common law of ethics”, that an appellate judge never reviewed his/her decision. Were the rule otherwise, why would Justice Breyer routinely recuse himself from reviewing his brother’s decisions?
Comment by Spencer Ervin — November 7, 2005 @ 12:13 pm
1) How does the Golder Case play into the argument, especially for Sanchez?
2) It seems that if Gonzales says the Geneva Conventions do not apply AND the AUMF declares enemies in whichever category it decides (which DC circuit upheld), then anyone captured in the GWOT does not stand a chance.
Comment by Stella — November 7, 2005 @ 12:16 pm
My quick reading leads me to believe the Court will not pass upon due process or the Bill of Rights is being violated. The only issues seem to be Congressional authorization and the Geneva Convention. This looks like Hamlet without the prince (to coin a cliche).
Comment by petelush — November 7, 2005 @ 12:24 pm
I do realize that Roberts told the Judiciary Committee that he would recuse himself in such cases. Having said that, he is morally obligated to abide by it.
My question was: Why did he feel the need to tell them that? What is the underlying legal basis for recusal?
Comment by Marc Shepherd — November 7, 2005 @ 12:35 pm
There is a recusal statute. But the reason he did so was political: so that he would be confirmed. The reason he will abide by his promise is so that Alito can be confirmed also. if he shows himself to be a promise-breaker, it will intensify the scrutiny of Alito and lessen his chances of confirmation.
Comment by Commentator — November 7, 2005 @ 1:36 pm
Bold text, BEGONE!
There, much better.
I’m not convinced that the Chief’s vote in Hamdan will matter. If Justice Scalia’s dissent in Hamdi is any indication, he will provide the fifth (with Kennedy possibly providing the sixth) vote against the Administration.
Comment by Ian — November 7, 2005 @ 5:00 pm
Shoot. Looks like my efforts at banishing the big, scary bold letters has failed.
Comment by Ian — November 7, 2005 @ 5:02 pm
A modest proposal for assuring the rights of detainess in the war on terror. See Innocent Until Proven Guilty
Comment by pbswatcher — November 7, 2005 @ 5:48 pm
I thought the chief person in the tribunals quit after the decision to suspend them until the civilian courts completed trial of this matter; I believe his remarks were similar to critiques of several defense attorneys who similarly at that time were struggling with the rules of evidence and other aspects of the configuration of those military tribunals. So, in defense of our host’s lexicon, you may count me among those that have the impression there remain likely legitimate doubts about the rules governing how tribunals were going to handle many aspects of their conduct including client representation, media access, and compartmentalization of hearings involving evidence and, complicated now, of course, by the issue which since has expanded greatly of how evidence was gathered.
With respect to the Chief’s recusal I suspect we are faced with the faster-than-light paradox, as it were, the Chief having the opportunity to sit twice, the second instance affording an opportunity to pass judgement on his own original minority opinion on the lower court, perhaps reversing it from his new higher court bench vantage. The issues are complex. It would be interesting to look at historical parallels in court history. At first I thought of how Marbury got to be decided. Supposedly politics are kept at arms length from the court arena.
Comment by JohnL — November 7, 2005 @ 6:01 pm
A bit off topic, but I’ve recently discovered the wonder that is Oyez.org
Would someone be willing to shoot me some of the more important cases along the lines of Hamdan that may have audio?
Click on my name to follow the link to my contact.
Thanks
Comment by Stella — November 7, 2005 @ 9:33 pm
Here is a thought which relates to the last paragraph of Lyle’s post. Maybe Roberts recused himself because he thought his vote would not really matter in this case. If the court splits 4-4, then the panel’s decision is upheld (in other words, Roberts has already cast his vote in the event of a tie). If the opinion is going to be 5-3 either way, again his opinion will not add anything to the calculation. The only problem with an even split of course would be that it would have no precedential value; i.e., other circuits could go the other way.
Comment by Hirbod — November 8, 2005 @ 12:08 am