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Critics of the Bush administration’s treatment of detainees in the war on terror applauded the Supreme Court’s decision last week to review the legality of military commissions in the case of Yemeni national Salim Ahmed Hamdan. Those cheers stopped on Nov. 10, when the Senate passed an amendment limiting the ability of federal judges to consider challenges brought by prisoners at Guant�namo Bay. Several constitutional lawyers said that, if enacted, the measure sponsored by Sen. Lindsey Graham (R-S.C.) could prohibit the Supreme Court from ruling in Hamdan’s case. “By its plain language, the Graham amendment covers all habeas litigation filed by detainees at Guant�namo, and Hamdan is in just that situation,” says Aziz Huq of the Brennan Center for Justice at New York University Law School. Legal scholars are reviewing the Civil War-era Supreme Court case Ex Parte McCardle. In that case the Supreme Court declined to take up the appeal of a Southern newspaper editor, who was convicted for publishing incendiary material, after Congress passed a law explicitly stripping the Court of jurisdiction to hear the case. Some legal experts say the Supreme Court might come to a different conclusion in Hamdan’s case. “The Graham amendment doesn’t even talk about military commissions, so I don’t see how this moots the case that’s before the Supreme Court,” says Carl Tobias, a law professor at the University of Richmond.
Vanessa Blum can be contacted at [email protected].

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