On November 7, the U.S. Supreme Court agreed to hear cas­es in two areas that could have broad impli­ca­tions for many defen­dants fac­ing the death penal­ty. In Hamdan v. Rumsfeld, No. 05 – 184, the Court will rule on the con­sti­tu­tion­al­i­ty of the mil­i­tary tri­bunals estab­lished by President Bush fol­low­ing the September 11, 2001 ter­ror­ist attacks. A U.S. District Court had halt­ed the mil­i­tary tri­al of Salim Ahmed Hamdan, who had been cap­tured in Afghanistan, because the tri­al vio­lat­ed domes­tic law and U.S. inter­na­tion­al treaty oblig­a­tions. This deci­sion was over­turned by the U.S. Court of Appeals for the District of Columbia Circuit. Hamdan is charged with con­spir­a­cy, mur­der and ter­ror­ism. Under the cur­rent mil­i­tary tri­bunals, the gov­ern­ment may seek the death penal­ty for cer­tain offens­es. Chief Justice John Roberts has recused him­self from the case because he was part of the pan­el of judges in the pri­or deci­sion. (N.Y. Times, Nov. 8, 2005).

The Court also agreed to hear two cas­es that raise issues relat­ed to the U.S.‘s lack of com­pli­ance with the Vienna Convention on Consular Relations. Both defen­dants, Mario Bustillo of Honduras and Moises Sanchez-Llamas of Mexico, are chal­leng­ing their con­vic­tions because author­i­ties did not inform them of their right to con­sult with rep­re­sen­ta­tives of their gov­ern­ments. The cas­es raise the issue of whether the Vienna Convention is enforce­able for assert­ing indi­vid­ual rights, or rather whether it only involves rela­tion­ships between the gov­ern­men­tal par­ties to the treaty. Mr. Bustillo’s case also presents the ques­tion of whether a state court can refuse to con­sid­er rights under the Vienna Convention if that issue was not raised in a time­ly man­ner. The cas­es are Bustillo v. Johnson, No. 05 – 51, and Sanchez-Llamas v. Oregon, No. 04 – 10566. (N.Y. Times, Nov. 8, 2005).

Neither for­eign defen­dant is fac­ing the death penal­ty, but there are over 100 for­eign nation­als on U.S. death rows, many of whom were sim­i­lar­ly not informed of their rights under the Vienna Convention. In its pre­vi­ous term, the U.S. Supreme Court dis­missed the case of Medellin v. Dretke, which involved a Mexican cit­i­zen on Texas’ death row, in order to give the Texas courts an oppor­tu­ni­ty to resolve sim­i­lar issues. President Bush stat­ed that the Texas courts should review the cas­es of Jose Medellin and oth­ers sim­i­lar­ly sit­u­at­ed in light of a rul­ing from the International Court of Justice order­ing such review. 

See September 11 Forum and Foreign Nationals.

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