Court to rule on military tribunals
on Nov 7, 2005 at 10:02 am
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.
