At court, a terror case rife with tough issues
The case of Salim Ahmed Hamdan, Osama bin Laden's former driver in Afghanistan, has the potential to become one of the most important US Supreme Court decisions of this generation.Skip to next paragraph
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It will test the scope of presidential power in the war on terror. It may clarify how detained Al Qaeda suspects are treated by the US. More broadly, it challenges the justices to further define the balance of power among the three branches of government during times of national emergency.
But before the high court takes up those weighty issues of constitutional law, it must decide a more basic question: whether it has jurisdiction to hear the case. If the justices decide the case is not yet ripe for their review, Mr. Hamdan's appeal ends there, at least for the time being.
That is the unusual posture surrounding the Hamdan case on the eve of oral arguments Tuesday - litigation so multilayered that the high court has taken the unusual step of allotting 90 minutes for oral arguments, a half hour more than usual.
The Bush administration, in its court brief, says Hamdan's appeal is "fatally premature." The Detainee Treatment Act, signed into law Dec. 30, 2005, bars federal judges and justices from hearing any appeals by Guantánamo detainees before a verdict is rendered by a military commission in their war-crimes cases, argues US Solicitor General Paul Clement.
The Hamdan case will signal how the Supreme Court views its role in the war on terror, say critics of the military-commission process. "Given the triumphalist orientation of this administration and the passivity of Congress, anything that gives us a better feel for how energetic the courts will be as a counterweight is critical," says Eugene Fidell, president of the National Institute of Military Justice.
Hamdan is being held in open-ended detention at the US terror prison camp at Guantánamo Bay, Cuba. In 2004, he was set to stand trial for allegedly conspiring with top Al Qaeda leaders to commit acts of terrorism, charges he denies. Shortly before his trial was to start, a federal judge in Washington ruled that the military- commission process violates both US law and the Geneva Conventions.
That decision was reversed by a federal appeals court panel. In November, the Supreme Court agreed to take up the case, examining whether military commissions at Guantánamo had been properly authorized by Congress or were otherwise authorized by the inherent powers of the president as commander in chief of the armed forces.
In addition, the court agreed to examine whether a federal judge can force the US government to apply the 1949 Geneva Conventions - international accords that define prisoners of war and how they are to be treated - to Guantánamo detainees.
The Bush administration maintains that detained Al Qaeda suspects don't qualify for the Geneva protections. Hamdan's lawyers say their client and others at Guantánamo are covered.
Under normal circumstances, those two questions would set the stage for constitutional fireworks. But the Hamdan case features extra twists.