The Supreme Court gave a skeptical hearing Tuesday 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 Convention 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 setback might be looming for the administration's legal strategy in the fight against terror. Two years ago, the court said war does not give the president a "blank check" to make new legal rules for capturing and holding prisoners.
The case heard Tuesday 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 native of Yemen and a former driver for Osama bin Laden. Hamdan was picked up in Afghanistan in 2001, and has been held since then at the military jail for terror suspects at Guantanamo Bay, Cuba. The administration has charged him with being a war criminal for having conspired with al-Qaida to kill Americans.
But the case 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 Convention says 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 Convention. Instead, his order said that terrorists and captured al-Qaida operatives would be tried in special military tribunals.
New Justice Samuel A. Alito Jr. suggested 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.