WASHINGTON -- The Supreme Court gave a skeptical hearing yesterday to the Bush administration's claim that the president has the power to create and control special military tribunals to punish foreigners he deems to be war criminals.
Five of the eight justices hearing the case commented that the laws of war and the Geneva Conventions set basic rules of fairness for trying alleged war criminals.
And they questioned whether the president was free to ignore those basic rules - as well as the rules of American military law.
It suggested a second setback might be looming for the administration's legal strategy in the fight against terrorism. Two years ago, the court said war - even a new kind of war on terrorism - does not give the president a "blank check" to make new legal rules for capturing and holding prisoners.
The case heard yesterday concerned the rules for punishing these prisoners. But the tenor of the argument suggested the court would again reject President Bush's claim of a unilateral power to try and punish alleged al-Qaida conspirators.
"If you defer to this system and give the president the ability to launch all these military tribunals, you will be countenancing a huge expansion of military jurisdiction," Georgetown law professor Neal Katyal told the justices.
Justice Stephen G. Breyer appeared to agree. "If the president can do this, well then he can set up a [military court] to go to Toledo and ... pick up an alien and not have any trial at all," he said.
Katyal was representing Salim Hamdan, a former driver for Osama bin Laden who was picked up in Afghanistan in 2001. He has been held since then at the military jail for terror suspects at Guantanamo Bay, Cuba.
The administration, led by Defense Secretary Donald H. Rumsfeld, has charged him with being a war criminal for having conspired with al-Qaida to kill Americans.
But the case of Hamdan v. Rumsfeld is not a test of whether bin Laden's driver is guilty as charged. Rather, it is a test of the president's power to act as lawmaker, prosecutor, judge and jury in the war on terrorism.
Hamdan's lawyer says he has no objection to having his client tried under the rules of courts martial used by the U.S. military. Most lawyers say these trials are fair because the prosecutors and judges have some independence from the command structure and because the defendant can confront and challenge the evidence used against him.
The Geneva Conventions say foreign prisoners of war can be tried as war criminals but they should be tried by a reputable court with established rules of fairness.
But in November 2001, President Bush issued an order saying his administration would not follow the Geneva Conventions. Instead, his order said that terrorists and captured al-Qaida operatives would be tried in special military tribunals.
The president reserved for himself the power to define which offenses would be crimes, who would prosecute the case, what rules would be followed and who would serve as judge and jury. And after the trial, those who were convicted could appeal their cases to the president.
This system is "literally unburdened by the laws, Constitution and treaties of the United States," Katyal said.
U.S. Solicitor General Paul Clement, representing the administration, said that since Gen. George Washington had a British spy tried and hanged, the "commander in chief ... has exercised the authority to try enemy combatants by military commissions."
The case is complicated by the fact that in December, Congress passed a law saying the courts have no jurisdiction to hear claims from prisoners at Guantanamo. Clement said Hamdan's case should be dismissed.
New Justice Samuel A. Alito Jr. agreed that the Supreme Court should not rule on the issue now. "In a criminal litigation, review after a final decision is the general rule," he said. If Hamdan is convicted, he could file an appeal in the federal courts, he added.
But that idea touched a raw nerve for most of the other justices. They sharply disputed the idea that Congress can bar the Supreme Court - or any federal judge - from hearing a "writ of habeas corpus" from a person held in U.S. custody.
Chief Justice John G. Roberts Jr. was missing from the argument because he ruled on the case while he was on the U.S. appeals court. If the court were to split 4-4, the government would win on a tie vote. But it sounded as though five of the justices were inclined to deal the administration a defeat.
David G. Savage writes for the Los Angeles Times.