WASHINGTON, Nov. 7 - 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 without the participation of
Chief Justice John G. Roberts Jr., 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 had no
jurisdiction over those held as enemy combatants at the United States naval
base at Guantánamo 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 had 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 President 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 are guaranteed in courts-martial.
Mr. 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 had been held at
Guantánamo. He is now one of a dozen detainees, out of the more than 500 still
held there, who have been designated by President 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 Guantánamo Bay next
week. The Pentagon said on Monday afternoon that it would proceed as planned,
but Judge Colleen Kollar-Kotelly, a federal district 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's term, it will be
decided without Chief Justice Roberts.
That is because he was a member of the three-judge panel of
the federal appeals court here that rejected Mr. Hamdan's challenge to the
commissions, overturning a ruling issued by Judge James Robertson of Federal
District Court last November.
The appeals court issued its decision on July 15, four days
before President Bush nominated Judge Roberts to the Supreme Court. When Mr.
Hamdan's lawyers filed their Supreme Court appeal three weeks later, it was
obvious that Judge Roberts, if confirmed to the Supreme Court, would be
ineligible to participate.
The potential for a 4-to-4 tie may have been a reason for
the apparent difficulty the other eight justices had in deciding whether to
hear the case, an action that requires four votes. The case was listed for consideration
at the justices' first closed-door conference of the new term, on Sept. 26, and
at every one of their subsequent weekly conferences, with no indication of the
fate of the appeal until the court issued an order Monday morning, granting the
case and noting that "the chief justice took no part in the consideration
or decision of this petition."
A tie vote affirms the lower court's decision without
setting a Supreme Court precedent. There are a number of interrelated issues in
the case, and the court's roadmap through them is not necessarily clear. At the
threshold, Mr. Hamdan's lawyers, Professor Neal K. Katyal of Georgetown
University Law Center and Lt. Cmdr. Charles Swift, argue that the
president's executive action establishing the military commissions was simply
without authorization.
"The president's unilateral creation of commissions,"
they argue, "his single-handed definition of the offenses and persons
subject to their jurisdiction, and his promulgation of the rules of procedure
combine to violate separation of powers." They add: "The Revolution
was fought to ensure that no man, or branch of government, could be so
powerful."
The Authorization for the Use of Military Force, which Congress passed in the immediate
aftermath of the Sept. 11 attacks, cannot plausibly be interpreted as the Court
of Appeals did, to authorize military commissions, Mr. Hamdan's brief asserts.
"While 'force' implies the power to detain those captured in battle, it
does not imply a power to set up judicial tribunals far removed from zones of
combat or military occupation," the brief says.
As to the actual operation of the commissions, Mr. Hamdan's
lawyers describe the rules of procedure as "starkly different than
the fundamental protections mandated by Congress in the Uniform Code of
Military Justice," which governs courts-martial. Their principal objection
is to the rules' failure to give the defendant an absolute right to attend the
trial, a right they describe as "universal" under civilian, military
and international law. "Saddam Hussein and his henchmen" will be able
to attend their trials under rules written by the Pentagon, they note.
Finally, Mr. Hamdan's lawyers argue that he is protected
under the Geneva Conventions despite the administration's view that the
convention that deals with prisoners of war does not apply to the military
conflict with Al Qaeda. This argument is supported by a brief filed by a group
of retired generals and admirals.
Under Article 102 of that convention, a sentence imposed
by a "detaining power," in this case the United States, can be valid
only if it "has been pronounced by the same courts according to the same
procedure" as members of the country's armed forces would enjoy. Under
Article 5, any doubt about an individual's eligibility for prisoner-of-war
status must be resolved by a hearing before a "competent tribunal;"
Mr. Hamdan, who denies being a member of Al Qaeda, has not received such a
hearing.
The administration argued successfully in the appeals court
that individuals cannot assert rights in court under the Geneva Conventions.
Mr. Hamdan's lawyers dispute this but argue that, even if it is correct, it is
beside the point because he is entitled to pursue his case through the
mechanism of a habeas corpus petition.