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.