The case, to be argued in March without the participation of Chief Justice John G. Roberts Jr., places the court back at the center of the national debate over the limits of presidential authority in conducting the war on terror. Last year, the Supreme Court rejected the administration's position that the federal courts had no jurisdiction over those held as enemy combatants at the United States naval base at Guantánamo Bay, Cuba.
This time, once again, the justices acted over the vigorous opposition of the administration, which urged the court to stay its hand and defer any review until after a detainee had been tried by a military commission and convicted.
Lawyers representing Salim Ahmed Hamdan, the Yemeni who brought the challenge to the commissions, argued however that the issues of domestic and international law raised by the case were sufficiently important to be heard and resolved without further delay.
The military and civilian lawyers representing him are arguing that President Bush had neither statutory authorization nor inherent authority to establish military commissions. Further, they argue that the commissions, as defined by the military order the president issued on Nov. 13, 2001, violate the Third Geneva Convention by withholding protections that defendants are guaranteed in courts-martial.
Mr. Hamdan, described by the government as Osama bin Laden's former bodyguard and driver, is charged with conspiracy, murder and terrorism. He was captured in Afghanistan in 2001 and since 2002 had been held at Guantánamo. He is now one of a dozen detainees, out of the more than 500 still held there, who have been designated by President Bush as eligible for trial before military commissions.
These would be the first trials by military commissions since the World War II era. Preliminary motions for the first trial, for an Australian detainee, David Hicks, are due to be heard at Guantánamo Bay next week. The Pentagon said on Monday afternoon that it would proceed as planned, but Judge Colleen Kollar-Kotelly, a federal district judge here with jurisdiction over another aspect of the Australian's case, ordered the parties to file briefs addressing whether the hearing should now be postponed.
Although the Hamdan case, Hamdan v. Rumsfeld, No. 05-184, is likely to be the marquee case of the Supreme Court's term, it will be decided without Chief Justice Roberts.
That is because he was a member of the three-judge panel of the federal appeals court here that rejected Mr. Hamdan's challenge to the commissions, overturning a ruling issued by Judge James Robertson of Federal District Court last November.
The appeals court issued its decision on July 15, four days before President Bush nominated Judge Roberts to the Supreme Court. When Mr. Hamdan's lawyers filed their Supreme Court appeal three weeks later, it was obvious that Judge Roberts, if confirmed to the Supreme Court, would be ineligible to participate.
The potential for a 4-to-4 tie may have been a reason for the apparent difficulty the other eight justices had in deciding whether to hear the case, an action that requires four votes. The case was listed for consideration at the justices' first closed-door conference of the new term, on Sept. 26, and at every one of their subsequent weekly conferences, with no indication of the fate of the appeal until the court issued an order Monday morning, granting the case and noting that "the chief justice took no part in the consideration or decision of this petition."
A tie vote affirms the lower court's decision without setting a Supreme Court precedent. There are a number of interrelated issues in the case, and the court's roadmap through them is not necessarily clear. At the threshold, Mr. Hamdan's lawyers, Professor Neal K. Katyal of Georgetown University Law Center and Lt. Cmdr. Charles Swift, argue that the president's executive action establishing the military commissions was simply without authorization.
"The president's unilateral creation of commissions," they argue, "his single-handed definition of the offenses and persons subject to their jurisdiction, and his promulgation of the rules of procedure combine to violate separation of powers." They add: "The Revolution was fought to ensure that no man, or branch of government, could be so powerful."
The Authorization for the Use of Military Force, which Congress passed in the immediate aftermath of the Sept. 11 attacks, cannot plausibly be interpreted as the Court of Appeals did, to authorize military commissions, Mr. Hamdan's brief asserts. "While 'force' implies the power to detain those captured in battle, it does not imply a power to set up judicial tribunals far removed from zones of combat or military occupation," the brief says.
As to the actual operation of the commissions, Mr. Hamdan's lawyers describe the rules of procedure as "starkly different than the fundamental protections mandated by Congress in the Uniform Code of Military Justice," which governs courts-martial. Their principal objection is to the rules' failure to give the defendant an absolute right to attend the trial, a right they describe as "universal" under civilian, military and international law. "Saddam Hussein and his henchmen" will be able to attend their trials under rules written by the Pentagon, they note.
Finally, Mr. Hamdan's lawyers argue that he is protected under the Geneva Conventions despite the administration's view that the convention that deals with prisoners of war does not apply to the military conflict with Al Qaeda. This argument is supported by a brief filed by a group of retired generals and admirals.
Under Article 102 of that convention, a sentence imposed by a "detaining power," in this case the United States, can be valid only if it "has been pronounced by the same courts according to the same procedure" as members of the country's armed forces would enjoy. Under Article 5, any doubt about an individual's eligibility for prisoner-of-war status must be resolved by a hearing before a "competent tribunal;" Mr. Hamdan, who denies being a member of Al Qaeda, has not received such a hearing.
The administration argued successfully in the appeals court that individuals cannot assert rights in court under the Geneva Conventions. Mr. Hamdan's lawyers dispute this but argue that, even if it is correct, it is beside the point because he is entitled to pursue his case through the mechanism of a habeas corpus petition.