Salim Ahmed Hamdan, Osama bin Laden’s driver and bodyguard, was captured on the battlefield in Afghanistan in 2001 and sent to Guantanamo Bay detention facility. Hamdan, through his attorneys, brought a habeas corpus petition in federal court.
The trial judge, James Robertson, issued a memorandum decision holding that Hamdan had enforceable rights under the Geneva Convention of 1949 and could not be tried by a military commission, that Hamdan had a right to view the evidence against him, and ordered him to be returned from solitary confinement to the general population of detainees.
James Robertson was appointed to the federal bench by President Clinton in 1994, and is a member of the “Magnificent Seven.” See additional background information on him here and here.
Robertson’s decision was reversed by a three-judge panel of the Court of Appeals for the D.C. Circuit, holding that the Geneva Convention cannot be judicially enforced and that the military commission was properly authorized by Congress. The court reasoned that Hamdan does not fit the definition of "prisoner of war" because his group, al Qaeda, does not display a fixed distinctive sign recognizable at a distance and the group does not conduct their operations in accordance with the laws and customs of war.
One of the judges on the Appellate Court panel was John Roberts, now Chief Justice of the Supreme Court.
Hamdan appealed to the Supreme Court and oral argument will be heard tomorrow. Because Roberts participated in the Appellate Court’s decision, he has recused himself from the Supreme Court case.
With Roberts out, a reasonable expectation of the outcome of the Supreme Court’s consideration is a 4-4 tie, with the leftist Stevens-Ginsburg-Souter-Breyer block voting to reverse the Court of Appeals. But the effect of a 4-4 tie is to uphold the Court of Appeals decision.
Faced with this likely defeat, the left is trying to get Justice Scalia to recuse himself for general remarks he made about alien detainees in Switzerland. Ed Whalen from Bench Memos on NRO concludes that no recusal is necessary. I concur.