The recent Hamdan decision which upheld the Bush-created military commissions will be appealed to the US Supreme Court, where it is by no means certain that it will be affirmed.
There may also be hope for David Hicks in the confirmation problems of Judge John Roberts of the DC Court of Appeals, George Bush’s nominee to replace retiring Supreme Court Justice Sandra Day O’Connor.
While he was sitting on the DC Circuit panel hearing the Hamdan case, in the week before oral argument, Roberts was approached and interviewed for the position of Supreme Court justice.
Who interviewed him? Attorney General Alberto Gonzales. As White House counsel, Gonzales was the architect of the system of detentions and military commissions. He claimed Bush had the power to ignore the Geneva Conventions and torture laws.
When the Hamdan case was before the court, a White House panel of Bush and his top aides again interviewed Roberts. This time he was offered the job, which was announced four days after the Hamdan decision was handed down. Hamdan gave the government everything it wanted.
Now that the chronology is known, Hamdan’s lawyers may have new grounds for appeal. According to the Wall Street Journal, Lt. Cmdr. Charles Swift, the Navy JAG representing Hamdan, “has until September 2” to decide whether to file a formal challenge to Judge Roberts’ participation in the court of appeals case.
A successful challenge to Roberts’ involvement could bring a new hearing in the Court of Appeals. In any case, it would be a fresh basis for appeal to the Supreme Court, as the CA finding that no part of the Geneva Conventions applied depended upon Judge Roberts.
The confirmation hearings for Roberts are scheduled to begin in the first week of September. Two leading Democrat senators have written to Roberts indicating they intend to question his decision to remain on the Hamdan case. Already, legal ethicists are saying that Roberts should have seen it as unethical to remain on the case, and “recused” himself.
Stephen Gillers, David J. Luban, and Steven Lubet – three respected law professors – noted other occasions where judges have recused themselves from cases where a party was considering the judge for employment. In other cases, where judges have not removed themselves, they have seen their decisions later vacated on that basis.
According to Michael Ratner of the Center for Constitutional Law in New York, the matter is even more serious.
Ratner, who represented Hicks and Habib in their successful appeal to the Supreme Court, is reminded of the case of Daniel Ellsberg, the man who leaked the Pentagon Papers. At the time Ellsberg was on trial for espionage President Nixon and other high level White House officials met with the trial judge to offer him the position of head of the FBI. Ratner says this was looked upon as offering a bribe and was one of the offences listed in the impeachment of Nixon.
Of course, there is another view. A law professor with the fetching name of Ronald Rotunda has weighed in for the government. In his 15-page letter to Senator Arlen Specter, chairman of the Judiciary Committee, Rotunda says Roberts did nothing wrong.
Rotunda neglected to mention that until very recently he was employed as a military adviser to the Department of Defence on military commissions – the very subject of the Hamdan case.
Soon after Hamdan was handed down, Hicks’ lawyers filed a supplemental brief in the appeal the government is taking against Judge Green’s decision in the In Re Guantnamo Bay cases, where Hicks is the lead petitioner.
His lawyers have also filed a motion asking the District Court to proceed pending the appeal in his challenge to the military commission, arguing they have other grounds than those_ Hamdan_ decided.