Comments on: Court to rule on military tribunals

By: Hirbod

Hirbod — Tue, 08 Nov 2005 04:08:46 +0000

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.

By: Stella

Stella — Tue, 08 Nov 2005 01:33:20 +0000

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

By: JohnL

JohnL — Mon, 07 Nov 2005 22:01:10 +0000

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.

By: pbswatcher

pbswatcher — Mon, 07 Nov 2005 21:48:08 +0000

A modest proposal for assuring the rights of detainess in the war on terror. See Innocent Until Proven Guilty

By: Ian

Ian — Mon, 07 Nov 2005 21:02:08 +0000

Shoot. Looks like my efforts at banishing the big, scary bold letters has failed.

By: Ian

Ian — Mon, 07 Nov 2005 21:00:45 +0000

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.

By: Commentator

Commentator — Mon, 07 Nov 2005 17:36:41 +0000

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.

By: Marc Shepherd

Marc Shepherd — Mon, 07 Nov 2005 16:35:56 +0000

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?

By: petelush

petelush — Mon, 07 Nov 2005 16:24:18 +0000

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).

By: Stella

Stella — Mon, 07 Nov 2005 16:16:57 +0000

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.

By: Spencer Ervin

Spencer Ervin — Mon, 07 Nov 2005 16:13:42 +0000

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?

By: John N.

John N. — Mon, 07 Nov 2005 16:06:08 +0000

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.

By: Commentator

Commentator — Mon, 07 Nov 2005 15:45:23 +0000

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.

By: Marc Shepherd

Marc Shepherd — Mon, 07 Nov 2005 15:22:45 +0000

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?

By: Commentator

Commentator — Mon, 07 Nov 2005 15:01:50 +0000

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.