Tuesday, November 08, 2005

Supreme Court to Hear Case on Tribunals

The Supreme Court has decided to hear a case involving Osama bin Laden’s former driver that will test the constitutionality of Bush’s war tribunals. The Court won’t hear the case for several months, but just putting this issue on the docket is an important step in regulating Bush’s “war powers.” WaPo explains:
President Bush has claimed broad power to conduct the war against al Qaeda and said that questions about the detention of suspected terrorists, their interrogation, trial and punishment are matters for him to decide as commander in chief.

But the court's announcement that it would hear the case of Osama bin Laden's former driver, Salim Ahmed Hamdan, shows that the justices feel the judicial branch has a role to play as well. The court has focused on whether Bush has the power to set up the commissions and whether detainees facing military trials can go to court in the United States to secure the protections guaranteed by the Geneva Conventions.

The justices have chosen to intervene at a sensitive time for the Bush administration. The Senate is mounting its first sustained challenge to the administration's claim that it alone can determine what interrogation methods are proper for detainees. The United States has come under fire after disclosures that the CIA has been interrogating suspects at secret "black sites" in Eastern Europe.

All of that will be in the background as the court considers a case that will turn on its view of whether the other branches of government can and should permit the executive branch to make all the rules in the battle against al Qaeda.
The interesting wrinkle in the whole thing is that this case, Hamdan v. Rumsfeld, is this same one Roberts decided as a member of the DC Circuit Court. Roberts and two other judges overturned a district court ruling that had stopped Hamdan’s military tribunal. Now that the case has made it to the Supreme Court, Roberts will have to recuse himself, leaving the remaining 8 justices to decide Hamdan’s fate. If the justices split 4 and 4 on this one (a definite possibility if Alito is on the bench) the ruling of the Circuit Court will stand, meaning Hamdan’s tribunal can continue. But, as the Post article notes, a split decision “would not create binding legal precedent,” leaving the issue of tribunals for suspected terrorist open for future challenge.

How ever the court rules in Hamdan, it has done well in deciding to hear the case. If Bush wants to conduct a war in the name of the American people, his efforts deserve the scrutiny of the other two branches of government.

--Matthew McCoy