Military tribunals to get a test in Supreme Court

The justices opt to take case of a Guantánamo detainee.

By , Staff writer of The Christian Science Monitor

A year and a half ago, the US Supreme Court delivered a blunt message to the White House: War is not a blank check entitling the president to violate the constitutional liberties of American citizens.

The decision resulted in the release of Yasser Hamdi, a dual US and Saudi citizen, who had been held indefinitely in a military prison without charge or access to a lawyer.

On Monday, the nation's highest court set the stage for the next major constitutional showdown over President Bush's ongoing war on terror. The issue is whether the president has the authority to put Al Qaeda suspects on trial before military commissions at the US naval base at Guantánamo Bay, Cuba.

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In agreeing to take up the appeal of Salim Ahmed Hamdan, the high court will examine government efforts to empanel a military-run war-crimes tribunal to weigh charges against Mr. Hamdan and three other terror suspects.

Such tribunals mark the first time in a half-century that the US government is relying on ad hoc military commissions to mete out justice rather than civil federal courts or the military justice system.

Lawyers and constitutional scholars who had urged the high court to take up the matter, praised the justices for their decision to tackle the Hamdan case.

"There are people who have been kept in Guantánamo so long that the situation just cries out for review," says Stephen Saltzburg, a law professor at George Washington University and general counsel for the National Institute of Military Justice. "The world wants to know whether our judiciary thinks these things matter, and taking this case says it matters."

David Remes, a Washington, D.C., lawyer who filed a friend-of-the-court brief, says the case is important because it could set the stage for similar abuses against American soldiers taken captive overseas. "This case is huge because one issue presented is whether the president can simply decide on his own initiative to suspend the Geneva Conventions as to a particular individual or group," Mr. Remes says.

Some 500 law professors urged the Supreme Court to take the Hamdan case.

"The central hope I have for this case in terms of separation of powers is that the Supreme Court will restore the constitutional directive that no one branch of government has the power to accuse, appoint the prosecutor, designate the judges, and render judgment," says Yale Law School Prof. Judith Resnik, who helped organize the letter campaign.

Hamdan, a Yemeni citizen, served as Osama bin Laden's driver in Afghanistan and is charged with being a member of Al Qaeda. He is one of nearly 500 detainees being held at the US terrorism prison camp at Guantánamo Bay.

Hamdan's trial was set to begin last fall. But a federal judge ruled in November that Hamdan could not be tried before a military commission without violating the 1949 Geneva Conventions. In July, a three-judge federal appeals court panel reversed the federal judge. The panel, including now Supreme Court Chief Justice John Roberts (who has recused himself), ruled that the president has the authority to order such commissions regardless of any conflicting provisions of the Geneva Conventions.

Lawyers for Hamdan asked the Supreme Court to reverse that ruling and examine the constitutionality of the use of military commissions.

By agreeing to take up the case, the high court action is likely to further delay the military commission process.

The Supreme Court has been willing to play a strong role in monitoring the government's war on terror, ruling in one major case that the government could not indefinitely detain a US citizen, and ruling in a second major case that federal court jurisdiction extends to detainees being held at the US base in Cuba. At the same time, a majority of justices left the president significant leeway to confront perceived threats to the nation's security.

The Hamdan case raises fundamental issues, including the scope of the president's power to detain and place on trial any foreign national deemed to be an enemy combatant. In urging the high court to take up the Hamdan case immediately, Hamdan's lawyer, Neal Katyal, drew upon a lesson from American history. He compared the Hamdan dispute to landmark Supreme Court case upholding the supremacy of civilian courts over an effort by President Abraham Lincoln to rely on military tribunals to quickly and efficiently prosecute suspected supporters of the Confederacy.

"At issue is whether the president can supersede established civilian and military judicial systems," Mr. Katyal says in his brief. "No graver question was ever considered by this court, nor one which more nearly concerns the rights of the whole people," he writes, quoting Ex Parte Milligan, an 1866 Supreme Court decision.

Lawyers for the government said that the high court should put off examining Hamdan's case until after his trial.

Katyal countered that the stakes for the nation are too high for any delay. "The court of appeals created a legal black hole where no law applies," he says. "In this setting, individuals will not merely be detained, but tried and sentenced to life imprisonment and even death."

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