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Hamdan will tackle presidential war power

By PAMELA HESS, UPI Pentagon Correspondent

WASHINGTON, March 27 (UPI) -- The Supreme Court on Tuesday will hear the arguments in a case that could decide once and for all whether the military commission and process set up to try "enemy combatants" captured in the war on terror is constitutionally legal.

Salim Ahmed Hamdan, allegedly a personal driver, bodyguard and weapons runner for Osama bin Laden, was captured in Afganistan and has been charged with conspiracy, attacking civilians, murder, destruction of property and terrorism. He is due to face a military tribunal -- a controversial military trial process created specifically for the detainees with different rules of evidence and access to counsel than in U.S. civilian or military courts.

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While Hamdan v. Rumseld is a case about the war on terrorism and Guantanamo, it is also a challenge to the checks and balances built into the U.S. Constitution. It will determine whether the president and Congress have the power to circumvent the U.S. judiciary when it comes to dealing with this newly created class of prisoner, and whether those prisoners have any rights at all under the U.S. Constitution. The Supreme Court will decide whether it has the power to limit presidential powers in war time.

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The Bush administration firmly believes the court should not be involved. For added insurance, it stacked the deck against judicial review in its favor by selecting the location of the detainee camp carefully. Building it on Guantanamo Bay Naval Base was an intentional attempt to put it outside the reach of U.S. courts.

Bush also declared at the beginning of the Afghan conflict that all the prisoners taken would be denied prisoner-of-war status under the Geneva Convention and its attendant privileges and the protections.

Among the new authorities claimed by U.S. President George Bush over these "enemy combatants" was the power to hold them indefinitely, without judicial review. A series of Supreme Court decisions have limited those powers somewhat but left unanswered key questions, including how long is too long for the detention of enemy combatants, and how high in the civilian court system a detainee can go to protest his internment and prosecution.

Congress stepped into the breach earlier this year with the passage of the Detainee Treatment Act of 2006. That law not only requires humane treatment for prisoners, it also prohibits enemy combatants from filing habeas corpus challenges to their detention in federal court. Finally, the law establishes the final authority for judicial review of military tribunals at the U.S. Court of Appeals in the District of Columbia, which has already sided with the government in the Hamdan case.

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The Hamdan case to be argued to the Supreme Court will examine five central questions. First, it will decide whether the Detainee Treatment Act of 2006 purports to cut the Supreme Court out of the loop on detainee issues. If it does, the Supreme Court will have to decide whether that is constitutional.

Second, while a case decided by the Supreme Court in 2004, Hamdi v. Rumsfeld, determined the president had the right to hold prisoners at Guantanamo, it was silent on whether the president had the right to create a new military court process to prosecute them.

Third, the court will decide whether Hamdan has any rights under the Geneva Convention, and whether the president can designate classes of prisoners as outside those boundaries.

Fourth, even if Hamdan does have Geneva Convention rights, can a U.S. court enforce them?

Finally, assuming the court does have jurisdiction over Guantanamo cases, it will need to decide whether it should wait until a military tribunal goes forward before rendering a decision as to its legality. The government's lawyers argue it must wait and then decide if the tribunal meets the requirements for due process. Hamdan's lawyers say the notion of tribunal -- distinct as it is from the civilian court system and from the military's legal system -- is on its face unconstitutional.

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The Hamdan case was heard by the U.S. District Court of Appeals last summer. One of the three judges who denied Hamdan's pleas is now Chief Justice of the Supreme Court John Roberts.

Roberts has recused himself from the case, so Hamdan will be decided by an eight-member court.

Justice Sandra Day O'Connor who wrote the Hamdi opinion last year has retired and been replaced by Justice Samuel Alito. A court watcher said while the court may be tipping conservative, the government's case is not a shoo-in. Hamdan is fundamentally about the power of the judiciary versus the executive in a system of checks and balances.

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