Military commissions in doubt? Part II
on Sep 16, 2005 at 6:41 pm
(A constitutional challenge to the military commissions set up by President Bush to conduct war crimes trials of terrorism suspects is pending at the Supreme Court, and appears likely to be acted upon by the Justices in late September or at the opening of the new Term on Oct. 3. Even before the Court reaches the case, however, the status of the commissions remains in doubt because of lingering issues in the D.C. Circuit. This is one of two posts on those developments. The first of these posts is just below.)
Chief Justice nominee John G. Roberts, Jr.’s participation as a federal appeals court judge in the initial constitutional challenge to President Bush’s creation of war crimes commissions to try terrorist suspects has drawn a new challenge — a legal challenge that, if it were to succeed, could at least delay those military proceedings and might seriously complicate them. This new development involves an issue that some critics of Judge Roberts have raised in the Senate Judiciary Committee review of Roberts’ nomination to the Supreme Court. It involves interviews and telephone calls he had about a potential nomination to the Supreme Court, while he was sitting on the D.C. Circuit panel reviewing the constitutionality of the military commissions.
The new maneuver was filed in the Circuit Court on Aug. 26 by Rami bin Saad Al-Oteibi, a Saudi national who is now being held as an “enemy combatant” at the U.S. Navy prison in Guantanamo Bay, Cuba. He does not face any criminal charges, in a military commission or elsewhere, but is being held captive for an indefinite period. Technically, his motion is a request to intervene in the still-pending Circuit Court case of Hamdan v. Rumsfeld — a case that is also now pending in the Supreme Court (see post below).
Al-Oteibi’s lawyers want to join in the Hamdan case at the Circuit Court for one purpose only: to formally ask that Judge Roberts be recused from the case. Judge Roberts joined in the D.C. Circuit ruling July 15 upholding the military commissions. Al-Oteibi’s claim is that a part of that decision — barring Guantanamo Bay detainees from raising issues under the Geneva Convention against their captivity and treatment — will undercut a Geneva Convention claim he has made in his habeas challenge in District Court to his continued detention. “The decision of the Court,” the motion to intervene argues, “will, in all likelihood,dispose of [Al-Oteibi’s] contentions…based on the Third Geneva Convention.”
Attached to the intervention motion is a motion to force Roberts’ recusal. That motion has not been accepted for filing in the Circuit Court, and will not be unless Al-Oteibi is allowed to intervene in the case. In the intervention motion, however, his attorneys told the Circuit Court: “The motion attached hereto seeks the recusal of Judge John Roberts on grounds that his repeated, undisclosed job interviews with high government officials while considering a case directly challenging the executive authority asserted by them, inevitably creates the appearance of bias. The motion is based on facts that have become known to Al-Oteibi’s counsel only recently, and thus could not reasonably have been raised earlier.”
Both Hamdan and the Bush Administration have opposed the motion to intervene on a variety of grounds, including suggestions that it came too late in the Circuit Court process. Hamdan’s lawyers also claim that Al-Oteibi’s maneuver will interfere with Hamdan’s own challenge to the military commission trial he faces. The Administration’s attorneys also argue that the maneuver, if it succeeds, “could also delay the government’s ability to restart Hamdan’s commission process.”
Al-Oteibi’s attorneys are contending that, if Roberts is forced off the Circuit Court as to the Hamdan case, this might undermine the part of the Court’s ruling on the Geneva Convention issue. “The Court can appropriately vacate the entire panel opinion in this matter,” but might also simply sever the discussion of the Geneva Convention question, leaving no ruling on that issue and thus leaving Al-Oteibi free to raise it in his case, the motion to intervene suggests.
Hamdan’s lawyers have not sought Roberts’ removal from the case. Instead, they have opted to move forward rapidly with their appeal to the Supreme Court.
When Democratic members of the Judiciary Committee brought up the question of Roberts’ participation in the Hamdan decision during this week’s committee hearings, Roberts generally refused to discuss that case and its issues. Among other reasons, he cited the pending challenge at the D.C. Circuit to his participation.
Among the attorneys who signed Al-Oteibi’s filings in the D.C. Circuit are lawyers for the Center for Constitutional Rights. In a letter Sept. 6 to the Judiciary Committee, the Center contended that Roberts’ participation “was both unethical and illegal” under federal law and the Judicial Code of Conduct. It called his role “disoncerting,” saying that he “heard and decided Hamdan at the same time as he had a series of converstions with high-ranking officials of the Bush Administration regarding his potential nomination to be a Supreme Court Justice.” It called this “a clear conflict of interest.”
The Center, which has been actively involved in providing legal representation to Guantanamo detainees and was directly involved in one of the Supreme Court war-on-terrorism cases last year, also told the Committee that the opinion joined by Roberts in the Hamdan case “demonstrates his readiness to undermine United States treaty obligations and international law in favor of the expansion of executive authority.”
The Center’s representatives were not among the 30 outside witnesses who testified at Roberts’ Senate hearings.
The proceedings in the D.C. Circuit on the Hamdan case, and the latest developments, are chronciled on the Circuit docket in case 04-5393.
Roberts is not expected to take any part in the Supreme Court consideration of Hamdan’s case, because he told the Judiciary Committee earlier that he would not rule on any case on which he had participated as a Circuit Court judge.
