Court Appears Wary of Terror War Tribunals

The Supreme Court gave a skeptical hearing Tuesday to the Bush administration’s claim that the president has the power on his own to create and control special military tribunals to punish foreigners he deems to be war criminals.

Five of the eight justices hearing the case commented that the laws of war and the Geneva Convention set basic rules of fairness for trying alleged war criminals.

And they questioned whether the president was free to ignore those basic rules -- as well as the rules of American military law.

The justices’ skepticism suggested a second setback might be looming for the administration’s legal strategy in the fight against terrorism. Two years ago, the high court said war -- even a new kind of war on terrorism -- did not give the president a “blank check” to make new legal rules for capturing and holding prisoners.

The case heard Tuesday concerned the rules for punishing these prisoners. But the tenor of the argument suggested the court would again reject President Bush’s claim of unilateral power to try and punish alleged Al Qaeda conspirators.

“If you defer to this system and give the president the ability to launch all these military tribunals ... you will be countenancing a huge expansion of military jurisdiction,” Georgetown University law professor Neal K. Katyal told the justices.

Justice Stephen G. Breyer appeared to agree. “If the president can do this, well then he can set up a [military court] to go to Toledo and ... pick up an alien and not have any trial at all,” he said.

Katyal was representing Salim Ahmed Hamdan, a native of Yemen and a former driver for Osama bin Laden. Hamdan was picked up in Afghanistan in 2001, and has been held since then at the military jail for terrorism suspects at Guantanamo Bay, Cuba.

The administration, led by Defense Secretary Donald H. Rumsfeld, has charged him with being a war criminal for having conspired with Al Qaeda to kill Americans.

But the case of Hamdan vs. Rumsfeld is not a test of whether Bin Laden’s driver is guilty as charged. Rather, it is a test of the president’s power to act as lawmaker, prosecutor, judge and jury in the war on terrorism.

Hamdan’s lawyer says he has no objection to having his client tried under the rules of courts-martial used by the U.S. military. Most lawyers say these trials are fair because the prosecutors and judges have some independence from the command structure and because the defendant can confront and challenge the evidence used against him.

The Geneva Convention says foreign prisoners of war can be tried as war criminals, but they should be tried by reputable courts with established rules of fairness.

But in November 2001, President Bush issued an order saying his administration would not follow the Geneva Convention. Instead, his order said, terrorists and captured Al Qaeda operatives would be tried in special military tribunals.

The president reserved for himself the power to define which offenses would be crimes, who would prosecute the cases, what rules would be followed and who would serve as judge and jury. And after the trial, those convicted could appeal their cases to the president.

This system is “literally unburdened by the laws, Constitution and treaties of the United States,” Katyal said.

U.S. Solicitor General Paul D. Clement, representing the administration, said that ever since Gen. George Washington had a British spy tried and hanged, the “commander in chief ... has exercised the authority to try enemy combatants by military commissions.”

The case is complicated by the fact that in December, Congress passed a law saying the courts had no jurisdiction to hear claims from Guantanamo prisoners. Clement said Hamdan’s appeal should be dismissed.

New Justice Samuel A. Alito Jr. agreed that the high court should not rule on the issue now. “In a criminal litigation, review after a final decision is the general rule,” he said. If Hamdan is convicted, he could file an appeal in the federal courts, Alito added.

But most of the other justices disputed the idea that Congress could bar the Supreme Court -- or any federal judge -- from hearing a writ of habeas corpus from a person held in U.S. custody.

In old English law, people imprisoned by the king could file a writ of habeas corpus -- a request to come before a judge. The U.S. Constitution adopted the idea and says “the writ of habeas corpus shall not be suspended [except] in cases of rebellion or invasion.”

President Lincoln suspended habeas corpus during the Civil War.

Hamdan filed a writ of habeas corpus to challenge the military trials, but Clement cited the action by Congress taking away the court’s authority to hear it.

“I have trouble with that argument,” Justice Anthony M. Kennedy said. “The historic [writ] of habeas is to test whether or not you are being tried by a lawful tribunal.”

Justice Antonin Scalia disagreed. “We don’t intervene on habeas corpus.... We wait until the proceeding’s terminated.”

Kennedy disputed that. “If a group of people decides they’re going to try somebody, we wait until that group of people finishes the trial?” he asked.

Justices David H. Souter, Ruth Bader Ginsburg and John Paul Stevens joined Breyer and Kennedy in clashing with the government’s lawyer.

Chief Justice John G. Roberts Jr. was missing from the argument because he had ruled on the case while he was a U.S. appeals court judge.

If the court were to split 4-4, the government would win. But it sounded as though five of the justices were inclined to deal the administration a defeat.