The Bush administration ran into skepticism from the Supreme Court on Tuesday as justices heard debate over a landmark war powers dispute testing the legal rights of enemy combatants held at Guantanamo Bay, Cuba.
At issue were military tribunals set up by the White House to try suspected terrorists, including Salim Hamdan, said to be the driver for Osama bin Laden, in the wake of the Sept. 11, 2001 attacks. Opponents claim the tribunals are an unlawful exercise of executive branch authority.
Justices seemed especially concerned about a law passed by Congress last year that the administration argues strips the high court of jurisdiction over habeas petitions filed by Guantanamo Bay detainees. The law created a limited appeals process for detainees that, the government says, excludes the Supreme Court -- even in pending cases like Hamdan's, argued Tuesday.
Justice Anthony Kennedy, likely the swing vote in the case Hamdan v. Rumsfeld, offered probing questions for both sides but seemed unwilling to accept that habeas petitions could be foreclosed by passage of the law, known as the Detainee Treatment Act.
"The historical function of habeas is to test the legitimacy" of the process that resulted in a prisoner's detention, Kennedy said, challenging Solicitor General Paul Clement. Justice David Souter also appeared irritated with Clement, suggesting that Congress, in passing the Detainee Treatment Act, had effectively suspended the writ of habeas corpus without saying so explicitly. "The writ is the writ," said Souter, with anger in his voice.
Justice Samuel Alito Jr. seemed more sympathetic toward Clement, suggesting in his questions that he thinks it is premature to rule on Hamdan's case until Hamdan is actually tried under the military commission procedures he is challenging.
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