Recent Hamdan Developments
No. 05-184, Hamdan v. Rumsfeld, has been re-listed for the Court’s conference on Friday, October 28. Today, 450 law professors issed a statement urging the Court to grant cert. in Hamdan to address what they regard as “foundational questions” involving “the relationship between the President’s constitutional powers as Commander-in-Chief and the existing constitutional, statutory, and international rules and tribunals that govern the conduct of war.” The text of the letter is available here; the list of signatories is available here; the letter transmitting the statement to Senators Specter and Leahy is available here.
Owen Bonheimer has this op-ed piece in this week’s Legal Times (subscription required) in which he urges the Court to grant cert. in Hamdan because tribunals in Iraq are now relying on the D.C. Circuit’s decision in Hamdan to allow the use of secret evidence. Bonheimer contends that “[l]eaving the D.C. Circuit decision unreviewed will foster a worldwide weakening of the fabric of international law,” as “the Hamdan decision could serve as a precedent for other countries to violate the rights not only of Saddam Hussein and his admittedly unsympathetic cohorts, but also of our troops.”
I haven’t read the article but an mystified by what Bonheimer is talking about. The only tribunals in Iraq are trials currently carried out in the Central Criminal Court of Iraq. Although established by CPA order, the CCCI applies Iraqi law, including the Iraqi Code of Criminal Proceedings (with some offensive Baath era provisions deleted by CPA order). The Iraqi Special Tribunal has a different set of rules, based in part on Iraqi and in part on international law, but has not yet admitted any evidence. However, an documentary evidence would have been classified by either the Baath regime (and so no hindrance to its use) or by the Coalition. If the Coalition released a document to the court (or the CCCI) for that matter, presumably it has been declassified. Trials in both courts are “open” (that is, not secret) although owing to security requirements, folks don’t wander in and out.
The only trials our military are conducting are against our own soldiers under the UCMJ. The United States does support the CCCI to the extent the investigative judges use and review evidence and statements collected by Coalition troops, but this nothing to do with Hamdan.
Again, I haven’t read his article – but how the Circuit Court’s decision in Hamdan have anything to do with Iraqi court (CCCI or IST), applying Iraqi domestic law?
Comment by BC — October 26, 2005 @ 5:28 pm
As I posted a week or so ago, I think they are split 4-4 with Roberts recused and O’Connor on the grant side, but either they have some agreement that O’Connor will not be the deciding vote (as with Douglas post-stroke) or one of the 4 against granting is holding things up to write a dissent from the grant to try to outwait O’Connor. Very recently, O’Connor gave a speech, I believe at the US Military Academy, where she said that US detention practices should conform with US constitutional values. There was an AP piece on it, I think Saturday, but it disappeared quickly and I haven’t been able to google it.
Comment by r.friedman — October 27, 2005 @ 8:36 am