Can a Court Second-Guess the President’s Conduct of Military Commission Trials?

by Julian Ku

Today the D.C. Circuit Court of Appeals heard arguments in Hamdan v. Rumsfeld, a case involving a challenge to the military commission trials of detainees at Guantanamo Bay. This is an enormously complicated case involving questions concerning the judicial enforceability of treaties such as the Geneva Convention, the President’s power to interpret and apply those treaties, and the President’s authority under federal law to try enemy combatants in military commissions. ( For Hamdan’s brief, see here.)

One of Hamdan’s attorneys is Professor Neal Katyal of Georgetown, an academic superstar who can also write a great brief. (For the U.S. government’s less impressive but still good briefs, see here and here.) He has also gathered a wide variety of amicus briefs (see here for his collection briefs filed in Hamdan and here for the district court’s decision.

Still, despite Kaytal’s briefing, I don’t think his client is going to prevail here. He has a difficult case to make: that (1) the G Conventions are judicially enforceable; and (2) that even if they are, the President’s interpretation of them is so wrong that the court can reverse his judgment on a matter that implicates foreign policy.

The strongest argument, I think, is not based on treaties or customary international law but statutory: that federal law requires the President to give Hamdan the right to be present at his commission trial. Unfortunately, the D.C. Circuit panel today was somewhat skeptical of this argument, pointing out that the right to be present is hardly a fundamental feature of military trials worldwide. This means that Hamdan might indeed lose here, although given the litigation firepower involved here and the importance of the case, everyone expects that the Supreme Court will eventually hear this case. So stay tuned…

2 Responses

  1. following on Ken Anderson’s suggestion,, the DC Circuit panel should cite foreign precendents that prisoners do not have the right to be present at all proceedings. that’ll will be a lesson to the foreign law advocates, who are very likely the same people who support Hamdan et al. in this case.

  2. Funny you should say that. Justice Ginsburg had made a similar point while at the ASIL, that folks from all across the political spectrum may find useful analogies from foreign law on a wide variety of issues.

    If a foreign court has dealt with a similar problem under similar circumstances then, sure, why shouldn’t a judge read it and consider it for what it is worth? Maybe it will be useful in thinking through the issues, maybe it won’t. But either way, there’s nothing wrong with reading it and, if it has influenced you, citing to it.

    Conservatives are just as free as liberals and moderates to cite to foreign sources if they want to.

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