07 November 2005

Cert Granted in Hamdan Case and Death Penalty Case.

The United States Supreme Court has voted to consider the Hamdan case. This is one of the two most important cases testing the enemy combatant policy of the Bush administration and will be resolved by just eight of the nine justices on the United States Supreme Court, because Chief Justice Roberts was on the Court of Appeals panel that heard the case. Whether or not Justice O'Connor is replaced by Judge Alito or another nominee before the case is decided could have a critical impact on the outcome of the case. There is no word yet on the other major enemy combatant policy case which the Court has been asked to consider, which is the case of Jose Padilla. A rejection of certiorari in the Hamdan case would have been a major blow to civil liberties in the United States.

The questions on review in this case, and another important case on judicial enforcement of treaty rights is as follows:

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?"

The issue in the later case concerns treaty rights of foreign nationals which are frequently ignored by local jurisdictions. In particular, there has been a stand off between the international court of justice and U.S. courts and state courts and the President over whether these rights must be honored in death penalty case, putting dozens, if not hundreds of executions, especially in Texas, at risk of being overturned. The International Court has ordered the executions halted, the President has ordered state courts to reconsider the cases, the state courts have blown off the President and the U.S. Supreme Court has thusfar punted while the issue plays out in other fora.

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