Supreme Court Grants Cert in Hamdan Case

The Supreme Court today (November 7) granted certiorari in the case of former driver for Osama bin Laden, Salim Ahmed Hamdan, a yemeni native.  Tamdan challenges the constitutionality of President Bush’s military tribunals. The case could be the most important test so far of the President’s power to detain and prosecute suspected terrorists captured and held overseas by the American military. President Bush set up the special military commissions two months after the September 11, 2001 attacks. The tribunals have not yet begun, pending the outcome of the high court case. Chief Justice John Roberts did not participate in the decision to grant cert. He was on the D.C. Circuit panel that rejected challenges to the tribunals; the decision in that case was announced a week before Roberts’ initial nomination to the Supreme Court.

Here are the Questions Presented in the cert petition:

  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. 10740, 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 corpus challenging the legality of their detention by the Executive branch?

According to Lyle Denniston’s post over at SCOTUSblog, Chief Justice Roberts “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.” Assuming that Justices Ginsburg, Breyer, Stevens, and Souter would like to reverse the outcome in Hamdan, the recusal of Roberts (a likely vote for the government) makes that outcome more likely.

KJ