- The Washington Times - Saturday, April 1, 2006

The Supreme Court heard arguments Tuesday in what could be a watershed case in determining how al Qaeda operatives and affiliates are brought to justice. In Hamdan v. Rumsfeld, the court heard a challenge from Salim Ahmed Hamdan of his status as an enemy combatant.

He was a personal assistant, driver and bodyguard to Osama bin Laden, and was captured during operations against al Qaeda in Afghanistan in 2001. He was then rightly designated an enemy combatant and made eligible for trial by military commission.

In deciding whether President Bush has the authority to try enemy combatants before military commissions, the court will address Mr. Bush’s authority in the war on terror. If the court were to rule that Mr. Bush lacked sufficient authority to establish the military commissions — that when Congress authorized the president to use “all necessary and appropriate force” in the war on terrorism, it did not, in fact, mean what it said — the Bush administration’s legal defense of several other essential national security programs, including NSA wiretapping, may be called into question.

In Ex parte Quirin, the Supreme Court allowed President Franklin Delano Roosevelt to establish military courts to try German saboteurs. As it deals specifically with a habeas corpus petition, the Quirin precedent is relevant and one the Supreme Court acknowledged in its 2004 Hamdi v. Rumsfeld decision. While the court’s 1942 Quirin decision specificaly avoided setting a sweeping precedent, the D.C. Circuit Court of Appeals’ unanimous rejection of the Hamdan case concluded that “we are… left with nothing to detract from Quirin’s precedential value.”

The Justice Department is also pursuing a jurisdictional argument on the grounds of the Graham-Levin amendment to the Detainee Treatment Act of 2005, which grants “exclusive jurisdiction” to the D.C. Circuit Court of Appeals to hear challenges like Hamdan’s. “The text, history, and purpose of the Detainee Treatment Act confirm that Congress intended to withdraw federal-court jurisdiction to review the detention-related claims of Guantanamo detainees,” explain Sens. Lindsey Graham and Jon Kyl, two sponsors of the amendment, in a friend of the court brief.

The text of the act, unfortunately, is more ambiguous regarding pending cases like Hamdan than Mr. Graham and Mr. Kyl suggest. And, Supreme Court Justice Antonin Scalia, for one, has frequently eschewed consideration of history and purpose. Without question, the court cannot honor the Graham-Levin amendment and rule the Hamdan case outside of its jurisdiction without tackling formidable constitutional questions.

With Chief Justice John Roberts recusing himself, it’s possible the court could split evenly on the issue, which would leave the appeals court ruling in place. That would be a victory, but not as forceful as it should be. At stake is the president’s ability to act, well within his authority and supported by precedent, for the sake of national security in a time of war.

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