Supreme Court to Rule on Military Trials?

Recently John Roberts and two other judges on the U.S. Court of Appeals for the District of Columbia Circuit Court overturned a lower court decision and ruled that detainees in Guantanamo may face military tribunals instead of having access to the civil court system.

Today the Supreme Court has been asked to consider blocking military tribunals for terror suspects. (May be temporary link.)

Attorneys for the plaintiff, Salim Ahmed Hamdan, have claimed that the District court ruling “held that the President has the power to decide how a detainee is classified, … how he is treated, what criminal process he will face, what rights he will have, who will judge him, how he will be judged, upon what crimes he will be sentenced, and how the sentence will be carried out.”

The particular plaintiff in question was a apparently a driver for Osama bin Laden.

A few questions for your consideration:

  1. If John Roberts becomes a SCOTUS Justice, should he recuse himself from hearing the case? Would he have to?

  2. Is there any possibility that SCOTUS would refuse to hear this case?

  3. What would happen if the Pentagon rushes through a military trial for this particular plaintiff before the Supremes have a chance to rule? (This may fall into the area of GQ.)

  4. If by some far stretch of the imagination, Bush, Rumsfeld and others were tried for war crimes, would their drivers also be considered criminals?

I don’t see why, although I’ll defer to our legal experts on that. What if, for example, the SCOTUS hears a case on a subject already decided, like Affirmative Action. Do all the justices who ruled on the recent cases have to recuse themselves?

THere is always that possibility, but this is one of the those BIG issues of the times that I would suspect they’d take up.

The SCOTUS can still rule that civil trials must be held even if military trials have already been held, no?

ObL’s driver isn’t considered a criminal, he’s an “enemy combatant”. But war crimes trials are run by the victors, and the victors get to make the rules/

Yes and no, respectively.

He should recuse himself because he would be reviewing his own judgment for error, a matter on which he obviously cannot be impartial. I’m unaware of U.S. Supreme Court practice on this matter, but it’s happened a number of times at the Texas Supreme Court (including one case I’m now involved in, where a court of appeals judge ruled for my client while he was on that court before he was sworn in as a justice on the high court). They have invariably recused themselves.

A very substantial possibility. I’d be surprised if they take it, actually. Their ruling last year said only that they get trials, not how they were to be conducted. I suspect the Court will be inclined to let it play out and clean up any residual mess after trial, not before it’s happened.

They could try, but that would essentially amount to begging the Court to issue a stay order. Courts always have the power to protect their own jurisdiction, and the Supreme Court does it quite regularly in death penalty cases. Plus, infamously, in the Bush v. Gore debacle.

Hamdan is not accused of war crimes so far as I know. He’s being tried for providing material assistance to terrorism, or something similar. Whether Bush and Rummy’s drivers could be charged with a similar crime obviously depends on the circumstances, with the primary circumstance being that it ain’t gonna happen.

Sorry, forgot to explain the second half of #1: Federal law describes the circumstances in which a federal district court or court of appeals judge is required to recuse himself from a case. However, that law does not apply to the justices of the Supreme Court. The justices routinely follow the the guidelines for recusal as a matter of practice and common sense, but they are not legally obligated to do so.

Just as I suspected. This should have been in GQ! Thanks, Minty. You too, John.