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The Supreme Court agreed Monday to review the legality of military commissions created by the Bush administration to try suspected terrorists for war crimes. The appeal, brought by Yemeni national Salim Ahmed Hamdan, challenges the administration’s decision to detain terror suspects outside the bounds of the Geneva Conventions and raises fundamental questions about the scope of the president’s wartime powers. Human rights advocates say the international law and separation of powers issues the Court will confront in Hamdan v. Rumsfeld are critically important, particularly in light of recent news reports indicating that the Central Intelligence Agency has been holding terror suspects in secret, unmonitored facilities overseas. The Court’s decision in Hamdan’s case could also bear directly on the habeas corpus claims of hundreds of detainees currently being held at the U.S. naval base at Guant�namo Bay. “At the moment there is no more critical issue than the exact scope of executive authority in the name of security,” says Judith Resnik, a law professor at Yale University. In October, Resnik organized a statement from more than 500 law professors, urging the Supreme Court to take up the case. The Supreme Court’s decision to do so is a blow to the Bush administration, which pressed the Court not to intervene. In a brief filed with the Court, Justice Department lawyers called Hamdan’s claims premature and argued that further federal court review should wait until after Hamdan’s actual commission trial. “Further proceedings before the military commission may make it unnecessary for this Court to address any number of questions currently presented in the case,” Justice Department lawyers argued in a brief opposing Supreme Court review. “If the commission finds the petitioner not guilty, the Court can avoid these issues altogether.” On the other side of the issue, nine groups — including members of the British and European parliaments, retired U.S. military officers and the National Institute for Military Justice — filed amicus briefs urging the Supreme Court to take up Hamdan before the proceedings went any further. “This case raises huge issues that affect the course of many other proceedings, not just others who would be tried by the commissions but also the detainees who are challenging their indefinite detention at Guant�namo Bay,” says David Remes, a partner at D.C.’s Covington & Burling who represents the retired military officers on their amicus brief as well as several Yemeni detainees being held at Guant�namo Bay. “Whatever the Court decides now will make a large difference going forward.” Despite the attention garnered by Hamdan’s case, the Supreme Court’s order granting certiorari comes as a bit of a surprise. The justices considered the case at three previous conferences but took no action, causing conjecture that the case did not have the support of four justices. Chief Justice John Roberts Jr., who ruled on Hamdan’s case earlier this year as an appeals judge on the U.S. Court of Appeals for the D.C. Circuit, did not participate in the decision to grant review. The Court has agreed to consider two constitutional questions presented by Hamdan. The first is whether President George W. Bush had the legal authority to establish military commissions. The second question asks whether military prisoners have judicially enforceable rights under the Geneva Conventions. Arguments in the case are expected to be heard in March 2006. If Supreme Court nominee Samuel Alito Jr. is confirmed to replace Justice Sandra Day O’Connor, he will likely be in place to participate in the case. In agreeing to hear Hamdan’s case, the Supreme Court has stepped into a contentious debate over the legal system the Bush administration crafted in the aftermath of the Sept. 11 terrorist attacks to try foreign nationals accused of aiding al-Qaida. Bush authorized the use of military commissions in November 2001. In July 2004, Pentagon officials charged 35-year-old Hamdan with conspiracy to commit terrorism and other war crimes. The Pentagon alleges that Hamdan served as a driver and a bodyguard for Osama bin Laden from 1996 to 2001. He was captured in Afghanistan and has been held at Guant�namo Bay since June 2002. On Nov. 8, 2004, even as military commission proceedings against Hamdan were taking place in a Guant�namo Bay courtroom, Judge James Robertson of the U.S. District Court for the District of Columbia ruled that the commissions violated provisions of military and international law. In response to the decision, the Pentagon halted commission proceedings. But in July 2005 a D.C. Circuit Court panel overturned Robertson’s decision. The panel held that Congress implicitly gave the president the power to establish military commissions in its joint resolution authorizing the use of military force and that the Geneva Conventions do not apply to members of al-Qaida. In their petition for certiorari, Hamdan’s lawyers argue that the D.C. Circuit decision expands the power of the president and undermines “longstanding constitutional, international-law, and statutory constraints on military commissions.” Hamdan’s lead lawyers, Navy Lt. Cmdr. Charles Swift and Georgetown University law Professor Neal Katyal, both declined to comment on the Supreme Court’s decision to hear the case. Marine Corps Col. Dwight Sullivan, who heads the military commission defense team, says the commission system is flawed because it concentrates too much power in the executive branch. His office filed an amicus brief arguing that the Supreme Court should hear the case. It is not clear whether the Court’s intervention in the case will delay military commission proceedings against other Guant�namo Bay detainees. Air Force Maj. Michael Shavers, a Defense Department spokesman, says that commission officials do not expect any changes to the current schedule. Pretrial hearings in the case of Australian detainee David Hicks are scheduled to begin Nov. 18. Marine Corps Maj. Michael Mori, Hicks’ defense attorney, says it would be foolish to proceed with the commissions before the Supreme Court rules on the system’s legitimacy. “I can’t imagine the Pentagon going forward with commission proceedings against Mr. Hicks when the Supreme Court is going to rule on the lawfulness of the system, unless they’re looking for a show trial,” Mori says.

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