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The government says that it doesn’t matter whether the Supreme Court decides to hear Ahmed Hamdan’s appeal — he’ll stay jailed at Guant�namo Bay regardless. But the lawyers for the accused enemy combatant — whom the government describes as Osama bin Laden’s former bodyguard and driver — are asking the high court to hear a challenge to the military commission system set up by the Pentagon to try suspected terrorists. The case, Hamdan v. Rumsfeld, is scheduled for review at the Supreme Court’s first private conference of the session today. If the Court decides to take the case, arguments would most likely be scheduled to begin early next year. Hamdan is considered an important test of the means by which the government can prosecute foreign terror suspects captured overseas in the war against terror. Hamdan’s lawyers argue the commissions are “built upon no settled principles” and give the president “the ability to circumvent the federal courts and time-tested limits on the executive.” The panel that will decide whether to hear the case will be composed of justices of a Court in transition. The Court is awaiting the outcome of chief justice nominee John Roberts Jr.’s confirmation proceedings, and Justice Sandra Day O’Connor could vote to hear a case that she may not participate in as a sitting justice. If confirmed, Roberts is expected to recuse himself from arguments in the Hamdan case, since he was part of the three-judge panel that heard the case in the U.S. Court of Appeals for the D.C. Circuit. Hamdan, a 34-year-old Yemeni national, was captured on the battlefield in Afghanistan in November 2001. Shortly thereafter, President George W. Bush declared Hamdan an “enemy combatant.” The designation meant that Hamdan was not entitled to the protections under the Geneva Conventions. Initial commission proceedings against Hamdan began in 2003 but were halted in November 2004 after Judge James Robertson of the U.S. District Court for the District of Columbia found that the government did not properly determine if Hamdan was entitled to prisoner-of-war status. The government appealed Robertson’s decision, and in July, the D.C Circuit panel determined the tribunals were lawful under the power granted to the president by the authorization of force measure that Congress passed after the 9/11 attacks. In their Supreme Court brief, Hamdan’s attorneys, Georgetown law professor Neal Katyal and Lt. Cmdr. Charles Swift, say of the appeals court decision that “No decision, by any court, in the wake of the Sept. 11, 2001 attacks has gone this far.” While they recognize that it is rare for the high court to “clarify rules at the outset of criminal trials,” Hamdan’s lawyers are asking the justices to determine Hamdan’s rights under the law of war before the commissions reconvene. The government argues that any review of the case by the high court would be premature, saying that Hamdan’s commission proceeding should go forward. Once that proceeding reaches a conclusion, the government argues, the case could be ripe for Supreme Court review. And, the government says, Hamdan isn’t going anywhere, even if the Supreme Court throws out the military commission system, because he is being lawfully held as an enemy combatant. Hamdan has also filed a habeas corpus claim in the federal courts that addresses his extended detention. OTHER CASES UP FOR REVIEWLab Corp. v. Metabolite, No. 04-607. Is a patent invalid because federal law prohibits patenting “laws of nature, natural phenomena and abstract ideas”? � Illinois v. Bartels, No. 04-1066. When does police questioning impermissibly expand scope under the Fourth Amendment? � Bannon v. Palm Beach County School District, No. 04-1207. May a school require the removal of religious references in a mural project? � Adams v. United States, No. 04-1225. Can federal employees state a takings claim for owed overtime? � Nat’l Solid Waste Mgmt Assoc. v. Pine Belt Regional Solid Waste Mgmt Auth, No. 04-1333. When does an entity have standing to raise a commerce clause challenge? � Board of Trustees of Univ. of Illinois v. Fujitsu Ltd. , No. 04-1346. Are rulings denying sovereign immunity claims immediately appealable? � KSR Int’l v. Telefax, No. 04-1350. What is the test for “obviousness” under which an invention cannot be patented? � Callery v. U.S. Life Insurance Co. , No. 04-1366. Does ERISA 502(a)(3) authorize money damages in a breach of fiduciary duty suit? � Ross v. Citifinancial, No. 04-1427. Can a court find that “fraudulent joinder” defeats diversity jurisdiction on grounds that can be asserted by diverse and nondiverse defendants? � Franklin Savings Corp. v. U.S. , No. 04-1462. What is the scope of the federal government’s waiver of sovereign immunity in the Bankruptcy Code? � Schriro v. Smith, No. 04-1475. Is a court of appeals in a habeas claim limited to arguments raised by the parties? � Jones v. Flowers, No. 04-1477. If a sales-tax notice is returned undelivered, must the government make further efforts to locate the property owner? � Office of Sen. Ben Nighthorse Campbell v. Bastien, No. 04-1486. Is alleged discrimination against an aide immunized from a suit by the speech and debate clause of the Constitution? � NJ Dept. of Labor v. Reconstituted Comm. of Unsecured Creditors of United Healthcare Sys. , No. 04-1487. Do nonprofit employers’ involuntary reimbursement obligations constitute excise taxes for the Bankruptcy Code’s priority scheme? � Maine v. Patterson, No. 04-1491. Do the police “seize” an individual under the Fourth Amendment by tapping on a car window and asking the occupant to roll it down? � Randall v. Sorrell, No. 04-1528. Are Vermont’s campaign finance limits constitutional? � Kane v. Espitia, No. 04-1538. Does a state court unreasonably interpret Supreme Court precedent by holding that a pro se defendant has no Sixth Amendment right to access legal resources? � Green v. Office of the Sheriff’s Office, Consolidated City of Jacksonville, No. 04-1549. Is an employment discrimination plaintiff entitled to a jury instruction that says if the jury does not believe the employer’s explanation for its conduct, the jury may infer discrimination? � DeWalt v. U.S. , No. 04-1594. Should the Court overrule Almendarez-Torres v. U.S.? � Perry v. Texas, No. 04-1660. What jury instructions are required for evaluating mitigating evidence in a capital case? � Ypsilanti Board of Ed v. Mulbah, No. 04-1674. Can an entity with no capacity to sue or be sued under state law be sued under Title VII? � Lumumba v. Mississippi Bar, No. 04-1696. Does the First Amendment apply to disciplinary proceedings regarding attorneys’ out-of-court statements? � Jobe v. City of Catlettsburg, No. 05-188. Can the government ban the placing of leaflets under car windshields? This column seeks to identify cases on the Supreme Court’s conference agenda that are leading candidates for review or that raise significant national issues. Thomas Goldstein of D.C.’s Goldstein & Howe selects these cases from the many petitions filed based on several factors, including whether lower courts have split on the issues presented.

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