Penn’s Center for Ethics and the Rule of Law (CERL) and the National Institute of Military Justice (NIMJ) this week filed an amicus brief in the U.S Supreme Court seeking a judicial review of a military commission ruling against Guantanamo Bay detainee Ali Hamza Ahmad Suliman Al-Bahlul.  

The brief argues that Petitioner Al-Bahlul was given an unfair hearing on his substantive claim due to the fact that presiding Judge Gregory Katsas failed to recuse himself, and urges the Supreme Court to grant Al-Bahlul his request for certiorari.  

Judge Katsas was a government attorney on the side of the prosecution in a closely related matter pertaining to the legality of the government’s case against Al-Bahlul, and the legality of his detention by the U.S. government at Guantanamo Bay. Under 28 U.S.C. §455, a federal judge must recuse should conflicts of interest arise.  

“A judge who has a conflict of interest in a case and who chooses not to recuse damages not only his own standing and integrity on the bench, but the integrity of the judicial system of which he is a part,” said Claire Finkelstein, CERL’s faculty director. “CERL and NIMJ filed this Amicus brief to urge the U.S. Supreme Court to grant Al-Bahlul’s petition for certiorari, given the split in the circuits relating to the federal recusal law (28 U.S.C. § 455), and the critical nature of federal court review of military commission cases.” 

“While federal recusal laws are critical to enforce in every case, they are all the more important in cases involving Guantanamo detainees, given the profoundly problematic nature of the commission system and the lack of clear governing laws regarding many issues in the commissions,” said Finkelstein. 

Counsel on the brief include Alberto Mora, CERL Executive Board member and immediate past Associate Executive Director for Global Programs at the American Bar Association’s Rule of Law Initiative, as well as former general counsel of the Navy, and Brenner Fissell, associate professor of law at Villanova Law and Senior Research Scholar at the United States Naval Academy’s Stockdale Center for Ethical Leadership and Frank Rosenblatt, President of the NIMJ and Assistant Professor at the Mississippi College School of Law.  

ABOUT CLAIRE O. FINKELSTEIN  

Claire Finkelstein is the Algernon Biddle Professor of Law and Professor of Philosophy and Faculty Director of the Center for Ethics and the Rule of Law at the University of Pennsylvania. She is a distinguished research fellow at APPC and a senior fellow at the Foreign Policy Research Institute (FPRI). Her current research addresses national security law and policy, democratic governance, and professional ethics.