Law profs ask High Court to review tribunals

A group of Yale Law School professors sent a letter to Congress and the U.S. Supreme Court yesterday demanding judicial review of a recent case which upheld the legality of military tribunals.

The letter, which was signed by 450 law professors nationwide, asks the Supreme Court to reconsider Hamdan v. Rumsfeld, in which the Washington, D.C. Circuit Court of Appeals overturned a district court ruling that had previously rejected the use of military courts at the naval base in Guantanamo Bay, Cuba.

The court case raises several legal issues, including due process and whether the president can bypass the regular court system to impose criminal penalties on suspected terrorists, said Yale Law School professor Robert Gordon, who signed the letter. Tribunal courts try individuals by secret evidence which is not always necessarily reliable, Gordon said. The objectivity of tribunals is also suspect, since the government can determine the tribunal judges, he said.

“At the moment they are kangaroo courts,” Gordon said. “The people who sit as judges are not trained lawyers, and the procedures are very much lacking for the kinds of due process protections we generally expect of tribunals that are going to sentence people to serious jail terms or death.”

Gordon said he thinks it is important for the Supreme Court to hear the case.

“I really don’t see how they could avoid it in this case, particularly because the court of appeals reached a very extreme conclusion which said that Congress has implicitly authorized the setup of these tribunals with its resolution to use necessary force to repel terrorism after 9/11, and that the president’s decision cannot be controlled by international law,” Gordon said. “That’s really a quite extreme position, it really does cry out for review.”

But Yale Diplomat-in-Residence Charles Hill said ad hoc courts are within the rights of a nation in cases of national security. Attempts to apply domestic law to matters of international security are misguided when dealing with threats from outside the international state system, he said.

“The enemy, the Islamists, reject the very concept of law that our country operates on,” Hill said. “Our system is able to comprehend that, and we’re fortunate it does.”

Still, Law School professor Judith Resnick, who helped write the letter, said the case’s central issues address the relationship between the President’s constitutional powers and the existing constitutional, statutory and international rules and tribunals that govern the conduct of war opposed, said

“Many of us around the country believe there are essential principles of the American constitutional system that are being violated by the executive branch,” Resnick said. “It is essential that these principles be reasserted.”

The setup of the tribunal courts raises issues of fairness and due process towards people who have been detained, said Christina Spiesel, a senior research scholar at the Law School.

“I believe the hopes of the world rest on our being a nation that lives under law,” Spiesel said. “The tribunals being created as a sort of improvisation are not part of our law system as I understand it.”

The Supreme Court has not yet decided whether it will review the case.

Comments