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The Bush administration ran into skepticism from the Supreme Court on Tuesday as justices heard debate over a landmark war powers dispute testing the legal rights of enemy combatants held at Guant�namo Bay, Cuba. At issue were military tribunals set up by the White House to try suspected terrorists, including Salim Hamdan, said to be the driver for Osama bin Laden, in the wake of the 9/11 attacks. Opponents claim the tribunals are an unlawful exercise of executive branch authority. Justices seemed especially concerned about a law passed by Congress last year that the administration argues strips the high court of jurisdiction over habeas petitions filed by Guant�namo Bay detainees. The law created a limited appeals process for detainees that, the government says, excludes the Supreme Court — even in pending cases like Hamdan’s, argued Tuesday. Justice Anthony Kennedy, likely the swing vote in the case Hamdan v. Rumsfeld, offered probing questions for both sides but seemed unwilling to accept that habeas petitions could be foreclosed by passage of the law, known as the Detainee Treatment Act. “The historical function of habeas is to… test the jurisdiction and the legitimacy of a court,” Kennedy said, challenging Solicitor General Paul Clement. Justice David Souter also appeared irritated with Clement, suggesting that Congress, in passing the Detainee Treatment Act, had effectively suspended the writ of habeas corpus without saying so explicitly. When Clement said Congress did not have to be any more explicit than it was, Souter said, with anger in his voice, “Wait a minute. The writ is the writ.” Justice Samuel Alito Jr. seemed more sympathetic toward Clement, suggesting in his questions that he thinks it is premature to rule on Hamdan’s case until Hamdan is actually tried under the military commission procedures he is challenging. “If there’s a final decision, there can be review of whether the use of the standards or procedures that were used by the commission to reach a final decision is consistent with the laws and the Constitution of the United States,” Alito said. Hamdan was captured by bounty hunters in Afghanistan in November 2001 and transferred to Guant�namo in June 2002. Thirteen months later, Hamdan was declared eligible to be tried by a military commission created by an order of President George W. Bush in November 2001. The commissions, which exist separately from courts-martial, operate under rules that allow the defendant to be excluded from trial and impose other limits on protections for defendants. Guilty verdicts and sentences are reviewable only by the president. Hamdan filed a habeas petition in 2004, challenging the commissions as a violation of the Geneva Conventions and asking instead that he be treated as a prisoner of war and tried by a military court-martial. Judge James Robertson of the U.S. District Court for the District of Columbia ruled for Hamdan. But a panel of the U.S. Court of Appeals for the D.C. Circuit reversed, ruling that the military commissions were authorized by the Uniform Code of Military Justice and by the congressional authorization of military force that was passed after the 9/11 attacks. The panel included then-Judge John Roberts Jr., who, now that he is chief justice, has decided to recuse himself in the case. After the Supreme Court agreed to review the Hamdan case, the dispute took an unusual turn when Congress passed the Detainee Treatment Act. The Bush administration then filed a motion seeking dismissal of Hamdan’s case, arguing that the new law applied to his and other pending cases. But lawyers for Hamdan argued that the law is prospective only. The high court added a half-hour to scheduled oral argument time to deal with the threshold jurisdiction issue raised by the law. As the unusual 90-minute arguments began, Roberts stood up and left as expected, signaling his recusal. Justice Antonin Scalia also stood up, briefly causing a stir because it appeared he too might be recusing. Retired generals who filed a brief on Hamdan’s side had requested Scalia’s recusal on Monday because of comments he made in Switzerland on March 8 that seemed to signal his views on the legal rights of detainees. But Scalia soon sat down and participated fully in the case. At times, Scalia appeared to take over Clement’s argument, answering points made by Kennedy, Souter, and Justice Stephen Breyer. “There were moments when Clement seemed to be a bystander,” said Deborah Pearlstein of Human Rights First, which filed briefs in support of Hamdan. “Clement had a really tough day.” Pearlstein predicted at least five votes against the government on the jurisdictional issue raised by the Detainee Treatment Act. If Scalia and Alito line up on the government’s side and they are joined only by usual ally Justice Clarence Thomas, that would mean a loss for the administration. Souter, Breyer, and Justice Ruth Bader Ginsburg seemed to be safe votes against the government position, and both Kennedy and Justice John Paul Stevens appeared mostly skeptical of Clement’s arguments. Clement cast the military commission process as nothing new, citing a long history going back to George Washington. “Congress has repeatedly recognized and sanctioned that authority,” he said. As is customary for Clement, he spoke with no notes in front of him. But Clement’s invocation of presidential power and congressional approval did not seem to quiet the concerns of justices. Nor did he seem to convince the Court when he argued that the Detainee Treatment Act could validly eliminate Court jurisdiction even for pending cases like Hamdan’s. “Just because Congress wasn’t clear,” Clement said, “doesn’t mean the government loses here.” Breyer said accepting Clement’s argument would draw the Court into the “horrifically difficult” position of ratifying the elimination of its own jurisdiction. Hamdan’s lead lawyer, Neal Katyal, a professor at Georgetown University Law Center, had planted the seeds of doubt earlier with a forceful presentation that outlined the ways in which the military commissions Bush established in the aftermath of 9/11 violated the Geneva Conventions, the laws of war, and the Uniform Code of Military Justice. The president, Katyal said, was arguing for a parallel system of justice for the detainees “unburdened by laws, treaties, or the Constitution.” To ratify the commissions, he added, would be “a blank check for years on end.” The Detainee Treatment Act, Katyal also said, does not amount to an endorsement of Bush’s military commissions. “Approval by inference has never been sufficient,” he said, in cases involving “the most awesome powers of government.”
Tony Mauro can be contacted at [email protected].

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