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Supreme Court to Hear Case On Military Detainee Policy

By Linda Greenhouse


The Supreme Court announced on Monday that it would decide the validity of the military commissions that President Bush wants to use to bring detainees charged with terrorist offenses to trial.

The case, to be argued in March, places the court back at the center of the national debate over the limits of presidential authority in conducting the war on terror.

Last year, the Supreme Court rejected the administration’s position that the federal courts have no jurisdiction over those held as enemy combatants at the United States naval base at Guantanamo Bay, Cuba.

This time, once again, the justices acted over the vigorous opposition of the administration, which urged the court to stay its hand and defer any review until after a detainee has been tried by a military commission and convicted.

Lawyers representing Salim Ahmed Hamdan, the Yemeni who brought the challenge to the commissions, argued however that the issues of domestic and international law raised by the case were sufficiently important to be heard and resolved without further delay.

The military and civilian lawyers representing him are arguing that Bush had neither statutory authorization nor inherent authority to establish military commissions. Further, they argue that the commissions, as defined by the military order the president issued on Nov. 13, 2001, violate the Third Geneva Convention by withholding protections that defendants would be guaranteed in courts-martial.

Hamdan, described by the government as Osama bin Laden’s former bodyguard and driver, is charged with conspiracy, murder and terrorism. He was captured in Afghanistan in 2001 and since 2002 has been held at Guantanamo.

He is now one of a dozen detainees, out of the more than 500 still held there, who have been designated by Bush as eligible for trial before military commissions.

These would be the first trials by military commissions since the World War II era. Preliminary motions for the first trial, for an Australian detainee, David Hicks, are due to be heard at Guantanamo Bay next week.

The Pentagon said Monday afternoon that it would proceed as planned, but Judge Colleen Kollar-Kotelly, a U.S. District Court judge here with jurisdiction over another aspect of the Australian’s case, ordered the parties to file briefs addressing whether the hearing should now be postponed.

Although the Hamdan case, Hamdan v. Rumsfeld, No. 05-184, is likely to be the marquee case of the Supreme Court term, it will be decided without the participation of the new chief justice, John G. Roberts Jr.

That is because he was a member of the three-judge panel of the federal appeals court here that rejected Hamdan’s challenge to the commissions, overturning a ruling issued by U.S. District Judge James Robertson last November.

The appeals court issued its decision on July 15, four days before Bush named Roberts to the Supreme Court. When Hamdan’s lawyers filed their Supreme Court appeal three weeks later, it was obvious that Roberts, if confirmed to the Supreme Court, would be ineligible to participate.