En banc review denied in military tribunal case
on Feb 16, 2005 at 3:04 pm
Slowing down a case that appears headed for the Supreme Court, the D.C. Circuit has refused to grant en banc review, at this point, in the case testing the constitutionality of President Bushâ€™s military tribunals set up to try foreign nationals on war on terrorism criminal charges. In an order dated last Friday, but mailed to attorneys this week, the full D.C. Circuit denied â€œinitial en banc reviewâ€ in Hamdan v. Rumsfeld (docket 04-5393).
The brief order noted that no member of the 10-judge court had asked for a vote on the petition, filed by attorneys for Salim Ahmed Hamdan. The Justice Department had opposed en banc review at this stage. The Department no doubt is satisfied with the three-judge panel that will now decide the case in the first instance: Circuit Judges A. Raymond Randolph, John G. Roberts and Stephen F. Williams. (Williams is a senior judge.) The panel is scheduled to hold a hearing March 8. The case supposedly is on an expedited basis before the panel, but expedition was ordered November 17, and all the briefs were in by January 10.
Fridayâ€™s order, of course, does not rule out later en banc review after the panel has decided the case, but that would not be likely for some time â€“ perhaps several months â€“ after the panel hears and decides the case. The case could, of course, go on to the Supreme Court without en banc review in the Circuit Court. Even so, it would not be likely to reach the Justices until the next Term opening in October.
In Hamdanâ€™s case, U.S. District Judge James Robertson ruled that the military tribunals set up at Guantanamo Bay are unconstitutional as presently constituted. He also ruled that Hamdan has a right to a decision by a â€œcompetent tribunalâ€ as to whether he is to be treated as a prisoner of war under the Geneva Convention.
(Thanks to Richard A. Samp of the Washington Legal Foundation for the tip on the en banc order.)