High Court to Hear on War Powers Use

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High Court To Hear Case On War Powers
Use of Military Panels For Detainees Is Tested

By Charles Lane
Washington Post Staff Writer
Tuesday, November 8, 2005; Page A01

The Supreme Court yesterday agreed to rule on the legality of the Bush administration's planned military commissions for accused terrorists, setting up what could be one of the most significant rulings on presidential war powers since the end of World War II.

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 discomfort some justices may have with U.S. foreign policy is bound to lap over" into their views of the legal issues, said Michael J. Glennon, a professor of international law at the Fletcher School of Law and Diplomacy at Tufts University. "There is no question the justices live in this world and they read the newspapers."

Both issues -- military commissions and the Geneva Conventions -- are intertwined and go back to the earliest days after the terrorist attacks of Sept. 11, 2001. The administration's approach to them helped generate some of the first policy debates of the war, inside and outside the administration

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