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Will the Supreme Court shackle new tribunal law?

President Bush's signature Tuesday is likely to set off legal tests.

By Staff writer of The Christian Science Monitor / October 17, 2006

The terror legislation set to be signed into law Tuesday by President Bush sits atop an ideological fault line that sharply divides the US Supreme Court and highlights the emerging power of Justice Anthony Kennedy.

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The new law rejects at least five key holdings by the liberal wing of the court and sets the stage for what many analysts believe will be yet another historic showdown between the courts, the president, and Congress.

Mr. Bush's authorization of the Military Commissions Act of 2006 will trigger a barrage of challenges asking judges to strike down the law as illegal, unconstitutional, or both. And it has sparked a heated debate among legal scholars and lawmakers.

Senate Judiciary Committee Chairman Arlen Specter (R) of Pennsylvania, who voted for the law, nonetheless told his colleagues just prior to its passage that he doubted the Military Commissions Act would survive judicial scrutiny. Others disagreed. "I bet you dollars to doughnuts when the Supreme Court gets hold of our work product, they are going to approve it," Sen. Lindsey Graham (R) of South Carolina said in a speech on the Senate floor.

The Military Commissions Act of 2006 establishes rules for trying Al Qaeda suspects for war crimes before special military tribunals. It somewhat narrows the protections of the Geneva Conventions available to detainees in the war on terror. And it tosses several hundred detainee lawsuits out of the federal courts, replacing rigorous habeas corpus review with a more constrained and streamlined appeals process.

The sharp divide at the Supreme Court is driven by a fundamental disagreement over the proper level of judicial oversight of the war on terror. Liberal justices seek more aggressive oversight to protect individual liberties. Conservatives favor granting more deference and flexibility to the president/ commander in chief during times of war.

Kennedy's key role

Although the votes of specific justices have sometimes been difficult to predict, there are signs that a familiar pattern is emerging in cases dealing with the war on terror. Just as in hot-button social issues like affirmative action and so-called partial-birth abortion, the balance of power in potential landmark national-security cases appears increasingly to rest in the hands of Justice Kennedy.

Of the three major high-court precedents dealing with the war on terror – the Hamdi and Rasul decisions announced in 2004 and the Hamdan decision in June 2006 – Kennedy voted in the majority in all three. Most important, his was the least restrictive opinion of the five-justice liberal majority that struck down Bush's military commission process in June. That is, Kennedy was reluctant to go as far as Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg, and Stephen Breyer in limiting Bush's options in the war on terror.

However, he was even more reluctant to grant the president the broad discretion that analysts say would have resulted in the approach favored by Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas, and Samuel Alito.

Instead, Kennedy joined the liberal wing in the Hamdan decision, but once there, he adopted a more centrist stance. He invited Congress to strike the proper balance between protecting national security while also upholding international human rights treaties. "Congress, not the court, is the branch in the better position to undertake the sensitive task of establishing a principle not inconsistent with the national interest or international justice," Kennedy wrote in his concurrence to the Hamdan decision.