Justices Hint That They'll Rule on Challenge Filed by Detainee

This is from The New York Times:

WASHINGTON, March 28 — As the justices of the Supreme Court took their seats Tuesday morning to hear Osama bin Laden's former driver challenge the Bush administration's plan to try him before a military commission, one question — perhaps the most important one — was how protective the justices would be of their jurisdiction to decide the case.

The answer emerged gradually, but by the end of the tightly packed 90-minute argument, it was fairly clear: highly protective.

At least five justices — Stephen G. Breyer, Ruth Bader Ginsburg, Anthony M. Kennedy, David H. Souter and John Paul Stevens — appeared ready to reject the administration's argument that the Detainee Treatment Act, passed and signed into law after the court accepted the case in November, had stripped the court of jurisdiction.

It was less certain by the end of the argument how the court would then go on to resolve the merits of the case, a multipronged attack on the validity of the military commissions themselves and on their procedures. Lawyers for the former driver, a Yemeni named Salim Ahmed Hamdan who is charged with conspiracy, also argue that he cannot properly be tried before any military commission for that crime because conspiracy is not recognized as a war crime.

Now I'm not going to try and make any guesses as to how the Supreme Court will rule in this case. But I do find it interesting that Justice Kennedy my be filling Sandra Day O'Conner's shoes as the crucial swing voter in these close decisions. If the court does rule on the detainee matter in this way--with Breyer, Ginsburg, Kennedy, Souter and Stevens striking down the law, while Thomas, Scalia, and Alito could rule to uphold the detainee law, Chief Justice Roberts will abstain from ruling, since he was a member of a three-judge panel of the federal appeals court that rejected Hamdan's challenge to the military commissions last July. If the ruling goes this way, then Kennedy is going to have enormous power in shaping the decisions for this court. Kennedy will become the most scrutinized justice for the Roberts Court, just as O'Conner was scrutinized during the Rehnguist Court.

According to the Post, here is what Kennedy had questioned:

Justice Kennedy was questioning Mr. Clement on the government's position that even if the court had jurisdiction, it should abstain from ruling on the validity of the military commission until after Mr. Hamdan's trial.

Justice Kennedy said he found the argument troubling, pointing out that Mr. Hamdan was arguing that because the commissions lacked the procedures required by the Geneva Conventions, they were invalid. "The historic office of habeas corpus is to test whether or not you're being tried by a lawful tribunal," Justice Kennedy said. "And he says, under the Geneva Convention, as you know, that it isn't."

Mr. Clement replied that Mr. Hamdan could raise that argument later, before the military commission itself. He predicted that the argument would fail and said that in any event, there was no reason "why that claim has to be brought at this stage."

This is going to be an interesting Supreme Court decision.