CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Monday, November 7, 2005

SCOTUS to Review the Role of Military Tribunals

The Supreme Court has agreed to review the case of Salim Ahmed Hamdan (Hamdan v. Rumsfeld, 05-184).  Hamdan, Osama bin Laden's former driver, is among approximately 500 foreigners who has been held at the U.S. military prison in Guatanamo Bay, Cuba.  The Supreme Court will decide if he can be tried for war crimes before a military tribunal in Guantanamo Bay.

The Bush Administration initially prohibited these men from seeing their attorneys or challenging their imprisonment, but in 2004, the Supreme Court decided that U.S. Courts may accept filings from them, despite their classification as "enemy combatants."  Before his appointment to the Supreme Court, Chief Justice Roberts was part of a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit who ruled against Hamden and decided that the 1949 Geneva Convention does not apply to al-Qaida and its members--only "prisoners of war"--a category noninclusive of "enemy combatants."

Roberts didn't participate in the decision of whether to accept Hamden's case, but Hamden's attorney, Georgetown CrimProf Neal Katyal may request Roberts to participate in the Court's ultimate decision if the Court renders a 4-4 tie.  Katyal calls the current system, "contrived...subject to change at the whim of the president...With constantly shifting terms and conditions, the commissions resemble an automobile dealership instead of a legal tribunal dispensing American justice and protecting human dignity," he wrote.

Other Law Profs have participated in the debate.  Yale Law professor Judith Resnik comments, "At the moment there is no more critical issue than the exact scope of executive authority in the name of security." In October, she organized a statement from more than 500 law professors, urging the Supreme Court to take up the case.

Maryland Law professor Michael Greenberger thinks the Court's acceptance of Hamden's case is "a black eye for the Bush administration. This [case] opens a Pandora's box." Greenberger, served as a Justice Department attorney in the Clinton administration. 

Two stories from here and here. [Mark Godsey]

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