Scalia remarks spark furor

WASHINGTON - Skeptical Supreme Court justices yesterday sharply questioned the Bush administration's plan to use military tribunals to prosecute terrorism suspects at the U.S. Navy base at Guantanamo Bay, Cuba, in a case presenting a major test of presidential wartime powers.

In one of the most significant terrorism-related cases to come before the court, the justices are being asked to rule on whether the special military tribunals can be used to try Osama bin Laden's former personal driver, Salim Ahmed Hamdan, who has been labeled an ''enemy combatant'' and charged with conspiracy to commit terrorism.

The case comes at a time when the Supreme Court has been willing to set new boundaries on the executive branch. The case also will have far-reaching effects on at least nine other detainees who face trial by military commissions.

Hamdan is asking the court to toss out his military commission and, if he must be tried, put him before a standard court martial - which has tougher rules for evidence.

Justice David Souter questioned whether the Bush administration was trying to have it two ways - arguing that military commissions were acceptable under international rules of war but then trying to bar detainees from asserting rights under the Geneva Conventions and other international treaties.

''For purposes of determining the executive authority to set up a commission, you say the president is operating under the laws of war recognized by Congress,'' Souter said.

But the administration then wants to eliminate normal criminal procedures for the commissions, ''saying the rules of law don't apply,'' Souter continued. ''And I don't see how you can have it both ways.''

Justice Stephen Breyer sharply outlined the opposition to the military war crimes tribunals:

''One, this is not a war, at least not an ordinary war. Two, it's not a war crime because (conspiracy) doesn't fall under international law. And three, it's not a war crime tribunal or commission because (there is) no emergency, it's not on a battlefield, civil courts are open (and) there is no military commander asking for it,'' Breyer said. ''It's not in any of those and other respects like past history. And if the president can do this, well then he can set up commissions to go to Toledo and in Toledo pick up an alien and not have any trial at all except in front of that special commission.''

U.S. Solicitor General Paul Clement, arguing to uphold the commission, told the court that ''the use of military commissions to try enemy combatants has been part and parcel'' of the president's inherent powers.

''Congress has repeatedly recognized and sanctioned the authority'' of military commissions, he added, noting that military commissions - last used after World War II - have often been employed in times of war.

Unfettered power

Hamdan's lawyer, Neal Katyal, told the court that if the justices side with the administration, they will be giving unfettered power to the president.

The military commissions are inherently flawed, Katyal said, and are ''unbounded by the laws, Constitution and treaties of the United States.''

''This is not an ordinary criminal trial. This is an ad hoc trial in which all of the procedures are defined by the president,'' Katyal said. ''The public interest is best served by this court . . . . setting some limits.''

The Bush administration envisioned the military tribunals as a quicker and tougher alternative to civilian courts for terrorism cases, in part because standard courtroom rules do not apply. For example, unlike in U.S. criminal courts, defendants before military commissions can be barred from the courtroom. The tribunals also have looser standards for evidence; for instance, unsworn statements can be allowed in the trials.

President Bush has asserted that he has the power to order the tribunals as the nation's commander in chief and under the congressional resolution authorizing military force passed days after the 2001 attacks.

Bush authorized the use of military tribunals against non-U.S. citizens believed to be involved in al-Qaida or international terrorism in an executive order issued Nov. 13, 2001.

Under Bush's order, enemy combatants tried by military commissions and found guilty can be sentenced to life in prison or given the death penalty.

During arguments yesterday, only two justices - Antonin Scalia and newly confirmed judge Samuel A. Alito Jr., - signaled that they were supportive of the administration's argument.

Scalia repeatedly tossed questions at Clement designed to help build his case. Alito questioned why Hamdan could not wait until after his trial has finished to challenge the conspiracy charge.


Roberts recused

Chief Justice John G. Roberts Jr., who ruled on the case as a lower court judge, recused himself, leaving open the possibility of a 4-4 tie among the eight participating justices.

A tie vote would leave standing the D.C. Circuit Court of Appeals ruling that found Hamdan's military tribunal had been authorized by the use of force resolution.

A high court ruling is expected by July.

The sharp-tongued Scalia declined to recuse himself from the case, rebuffing a request from a group of retired generals who said recent public comments - which seemed to dismiss arguments against the tribunals - made Scalia appear biased.

The first question facing the justices is an unusual one - whether the court even has jurisdiction to rule on the case. Bush signed a law last December that stripped federal courts' of jurisdiction over habeas corpus petitions filed by Guantanamo Bay detainees challenging their detentions.

The statute authorized a separate military review process for detainees' claims.

Yesterday, most of the justices - particularly Breyer and John Paul Stevens - seemed unwilling to cede jurisdiction in detainees' cases.

Military Tribunal Case Comes Before Skeptical Supreme Court

. . . After the Supreme Court agreed to review the Hamdan case, the dispute took an unusual turn when Congress passed the Detainee Treatment Act. The Bush administration then filed a motion seeking dismissal of Hamdan's case, arguing that the new law applied to his and other pending cases. But lawyers for Hamdan argued that the law is prospective only. The high court added a half-hour to scheduled oral argument time to deal with the threshold jurisdiction issue raised by the law.

As the unusual 90-minute arguments began, Roberts stood up and left as expected, signaling his recusal. Justice Antonin Scalia also stood up, briefly causing a stir because it appeared he too might be recusing. Retired generals who filed a brief on Hamdan's side had requested Scalia's recusal on Monday because of comments he made in Switzerland on March 8 that seemed to signal his views on the legal rights of detainees.

But Scalia soon sat down and participated fully in the case. At times, Scalia appeared to take over Clement's argument, answering points made by Kennedy, Souter, and Justice Stephen Breyer.

"There were moments when Clement seemed to be a bystander," said Deborah Pearlstein of Human Rights First, which filed briefs in support of Hamdan. "Clement had a really tough day." Pearlstein predicted at least five votes against the government on the jurisdictional issue raised by the Detainee Treatment Act.

If Scalia and Alito line up on the government's side and they are joined only by usual ally Justice Clarence Thomas, that would mean a loss for the administration. Souter, Breyer, and Justice Ruth Bader Ginsburg seemed to be safe votes against the government position, and both Kennedy and Justice John Paul Stevens appeared mostly skeptical of Clement's arguments. . . .

Breyer said accepting Clement's argument would draw the Court into the "horrifically difficult" position of ratifying the elimination of its own jurisdiction.

Hamdan's lead lawyer, Neal Katyal, a professor at Georgetown University Law Center, had planted the seeds of doubt earlier with a forceful presentation that outlined the ways in which the military commissions Bush established in the aftermath of Sept. 11 violated the Geneva Conventions, the laws of war, and the Uniform Code of Military Justice.

The president, Katyal said, was arguing for a parallel system of justice for the detainees "unburdened by laws, treaties, or the Constitution." To ratify the commissions, he added, would be "a blank check for years on end."