Will the Supreme Court shackle new tribunal law?

The terror legislation set to be signed into law Tuesday by President Bush sits atop an ideological fault line that sharply divides the US Supreme Court and highlights the emerging power of Justice Anthony Kennedy.

The new law rejects at least five key holdings by the liberal wing of the court and sets the stage for what many analysts believe will be yet another historic showdown between the courts, the president, and Congress.

Mr. Bush's authorization of the Military Commissions Act of 2006 will trigger a barrage of challenges asking judges to strike down the law as illegal, unconstitutional, or both. And it has sparked a heated debate among legal scholars and lawmakers.

Senate Judiciary Committee Chairman Arlen Specter (R) of Pennsylvania, who voted for the law, nonetheless told his colleagues just prior to its passage that he doubted the Military Commissions Act would survive judicial scrutiny. Others disagreed. "I bet you dollars to doughnuts when the Supreme Court gets hold of our work product, they are going to approve it," Sen. Lindsey Graham (R) of South Carolina said in a speech on the Senate floor.

The Military Commissions Act of 2006 establishes rules for trying Al Qaeda suspects for war crimes before special military tribunals. It somewhat narrows the protections of the Geneva Conventions available to detainees in the war on terror. And it tosses several hundred detainee lawsuits out of the federal courts, replacing rigorous habeas corpus review with a more constrained and streamlined appeals process.

The sharp divide at the Supreme Court is driven by a fundamental disagreement over the proper level of judicial oversight of the war on terror. Liberal justices seek more aggressive oversight to protect individual liberties. Conservatives favor granting more deference and flexibility to the president/ commander in chief during times of war.

Although the votes of specific justices have sometimes been difficult to predict, there are signs that a familiar pattern is emerging in cases dealing with the war on terror. Just as in hot-button social issues like affirmative action and so-called partial-birth abortion, the balance of power in potential landmark national-security cases appears increasingly to rest in the hands of Justice Kennedy.

Of the three major high-court precedents dealing with the war on terror – the Hamdi and Rasul decisions announced in 2004 and the Hamdan decision in June 2006 – Kennedy voted in the majority in all three. Most important, his was the least restrictive opinion of the five-justice liberal majority that struck down Bush's military commission process in June. That is, Kennedy was reluctant to go as far as Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg, and Stephen Breyer in limiting Bush's options in the war on terror.

However, he was even more reluctant to grant the president the broad discretion that analysts say would have resulted in the approach favored by Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas, and Samuel Alito.

Instead, Kennedy joined the liberal wing in the Hamdan decision, but once there, he adopted a more centrist stance. He invited Congress to strike the proper balance between protecting national security while also upholding international human rights treaties. "Congress, not the court, is the branch in the better position to undertake the sensitive task of establishing a principle not inconsistent with the national interest or international justice," Kennedy wrote in his concurrence to the Hamdan decision.

The Republican-controlled Congress eagerly accepted the invitation. But if Justice Stevens's Hamdan decision was a rebuke of Bush's terror policies, as many analysts have opined, the Military Commissions Act is a counterrebuke of the liberal wing of the high court – including Kennedy.

The new law rejects much of the liberal wing's approach in the Rasul and Hamdan decisions.

•It rejects the high court's view (in the Rasul decision) that suspected Al Qaeda members detained at Guantánamo Bay, Cuba, must be afforded the right to file habeas corpus challenges in US courts.

•It rejects Stevens's majority opinion (in the Hamdan decision) that the Detainee Treatment Act of 2005 did not retroactively strip the Supreme Court (and other federal courts) of jurisdiction to hear habeas corpus challenges filed by Guantánamo detainees.

•It rejects the conclusion of four justices in the liberal wing (in Hamdan) that Al Qaeda defendants on trial before military commissions must be allowed to attend their entire trial and confront all evidence being used against them – even when the evidence is classified.

•It rejects the conclusion of the Stevens plurality in the Hamdan decision that conspiracy is not a war crime and thus cannot be the basis of a trial before a military commission operating under the Law of War.

•And it rejects the liberal wing's more expansive view (in Hamdan) of the applicability of Common Article 3 of the Geneva Conventions to Al Qaeda suspects. That provision gives a base line of human rights protections for detainees.

Although Congress and the Bush administration acknowledge that Common Article 3 applies in the war on terror, the Military Commissions Act interprets the treaty in a way that narrows its protections and retroactively provides a defense for US officials who engaged in harsh interrogation tactics such as simulated drowning and induced hypothermia.

Human rights workers say such harsh tactics violate the treaty. Administration officials deny that US personnel have engaged in torture or unlawfully cruel conduct during interrogations.

Ultimately, if the Military Commissions Act winds up before the high court, the outcome may turn on how Kennedy interprets a single paragraph in the 2004 Hamdi decision. At issue in that case was whether a US citizen could be held indefinitely as an enemy combatant. Justice Sandra Day O'Connor (who has since retired) wrote a plurality opinion joined by Kennedy. It said that a citizen-detainee accused of being an enemy combatant must be able to examine the factual basis for his detention and be given a fair opportunity to rebut the government's allegations before a neutral decisionmaker.

Allowing a detainee to file a habeas corpus petition to a federal judge would satisfy this standard, the court said. But the Hamdi opinion continues: "There remains the possibility that the standards we have articulated could be met by an appropriately authorized and properly constituted military tribunal." The opinion cites Army Regulation 190-8 as an appropriate substitute.

In the aftermath of both the Hamdi and Rasul decisions, the Defense Department was searching for a way to avoid a flood of habeas corpus petitions filed on behalf of Guantánamo detainees to federal judges in Washington. Defense officials relied on that key paragraph in the Hamdi decision and created the Combat Status Review Tribunal system, modeled on Army Regulation 190-8. It involves three officers who review evidence supporting a detainee's designation as an enemy combatant.

The thinking was that if the Supreme Court endorsed such a system as a constitutional alternative to habeas corpus review for US citizens in the Hamdi case, the same system should provide more than enough due process to noncitizen enemy combatants being held at Guantánamo.

If Kennedy agrees with this position, the Military Commissions Act would probably survive its most serious legal challenge. But Kennedy's stance on this issue is unclear.

Lawyers for Guantánamo detainees say that Combat Status Review Tribunals (CSRT) fall far short of the fair procedures required in the Hamdi case. "They are a sham," says Thomas Wilner, one of the lead Guantánamo defense lawyers who won the Rasul case and is continuing to litigate related issues at the federal appeals court in Washington. "They did not give what Hamdi said you have to give – the minimal basic due process requirement."

The requirement includes that a detainee receive prior notice of all accusations being made against him and a fair opportunity to confront those charges before a neutral decisionmaker.

When the evidence is classified, a declassified summary doesn't always provide enough information to enable a detainee to defend himself, defense lawyers say.

In one CSRT hearing, the detainee was accused of associating with a known Al Qaeda operative in Bosnia.

"Give me his name," the detainee said.

The tribunal president said he didn't know the name.

"How can I respond to this?" the detainee asked.

"Did you know of anybody who was a member of Al Qaeda?" the tribunal president asked.

"No, no."

The detainee added, "This is something the interrogators told me a long while ago. I asked the interrogators to tell me who this person was.... If you tell me the name, then I can respond and defend myself against this accusation."

Defense lawyers say that unlike previous wars, most of the US detainees at Guantánamo Bay weren't captured by US soldiers on a battlefield. Many were "sold" to the Americans by Pakistanis and Afghans seeking payment of US bounties for Al Qaeda members even when their Al Qaeda involvement was less than clear. Defense lawyers say this is why there may be a significant number of innocent detainees among those being held at Guantánamo.

This is complicated by the widely held assumption that most bona fide Al Qaeda members will falsely insist during hearings that they are innocent goatherders or hapless students rather than holy warriors.

•Establishes special rules for military-commission trials for Al Qaeda suspects accused of committing war crimes. The rules permit the exclusion of a defendant from his trial if classified evidence is being presented, and the admission of hearsay and coerced statements as evidence.

•Authorizes a three-officer military panel to determine a detainee's status as an enemy combatant eligible for indefinite detention in US custody. This is in lieu of the ability to file a habeas corpus petition challenging the legality of the detention in federal court.

•Creates a retroactive legal defense for US personnel who engaged in harsh interrogation tactics from September 2001 to December 2005. Also narrows the range of activities that might constitute a violation of Common Article 3 of the Geneva Conventions outlawing torture and cruel treatment.

•Expands the definition of an unlawful enemy combatant to provide that anyone who offers "material support" to someone engaged in hostilities against the US can be held indefinitely in military detention, regardless of whether he or she actually engaged in hostilities. Also provides that only noncitizens held as unlawful enemy combatants may be tried by a military commission.