The Supreme Court on Monday agreed to hear a challenge to President Bush's war powers, taking on a case to decide whether Osama bin Laden's Yemeni driver should face a war crimes court at Guantanamo Bay, Cuba.
In an unusual move, the justices agreed to review a federal appeals court decision by their new chief justice, John G. Roberts, who with two other federal judges had earlier upheld the president's Military Commissions in the case of Salim Hamdan v. Donald Rumsfeld, the secretary of defense.
Roberts disqualified himself, and is expected to do the same when the court hears arguments in the case, probably in March.
The decision sets the stage for an extraordinary showdown between a man accused of being an al-Qaida foot soldier and the Pentagon over Bush's post-Sept. 11, 2001, war powers.
Hamdan's lawyers claim the president exceeded his constitutional powers by authorizing his defense secretary to create the commissions in the first place, without congressional approval. They also claim the commissions, as designed, violate the laws of war because the United States did not follow the Geneva Conventions by designating Hamdan an enemy combatant instead of a prisoner of war.
Bush created the Military Commissions by executive order on Nov. 13, 2001, in the aftermath of the Sept. 11 attacks.
Defense officials pressed forward with their plans for commissions even after the high court's decision to hear the case. The Pentagon said it was sticking to a timetable that included pre-trial motions for Australian captive David Hicks, 30, at Guantanamo next week.
And the Pentagon announced charges against five more prisoners, including Canadian Omar Khadr, who was 15 years old when he was captured in Afghanistan in 2002 as part of an insurgent ambush of a U.S. patrol that killed an American soldier.
The other four included two men from Saudi Arabia, an Algerian and an Ethiopian.
Hamdan is a 35-year-old Yemeni with a fourth-grade education who claims he never joined the global al-Qaida movement but admits to driving bin Laden in a Toyota pickup truck for $200 a month, mostly on bin Laden's Kandahar farm.
Hamdan claims that Afghani troops captured him along the Afghan-Pakistan border in the U.S.-led war to topple the Taliban after he dropped his wife and daughter off in the safety of Pakistan, and was heading to Kandahar to return a borrowed car.
The United States accuses him of being a member of al-Qaida who worked as bin Laden's bodyguard as well a driver. He is charged with conspiracy, and is one of only four of the 500 or so captives at the Navy base in Cuba already charged in the first U.S. war crimes tribunal since World War II.
In an unusual twist, a court statement said "the chief justice took no part in the consideration" of whether to grant Hamdan's lawyers' request for a writ of certiorari.
In July, Roberts was on the three-member federal appeals panel that upheld the Military Commissions and overruled U.S. District Court Judge James Robertson's November 2004 decision that declared the process unconstitutional.
University of Richmond law professor Carl Tobias hailed Monday's decision to intervene.
"I think it's valuable," he said. "People have wondered, since (President Bush) has established them by executive order, whether they were constitutional on the one hand and secondly whether they comported with international law."
Some international law and human rights advocates, as well as some former military lawyers, argue that the captives deserved POW status; separately, some groups have argued that, after four years, if the United States cannot find a way to charge Guantanamo captives under U.S. law, they should be set free.
"The Supreme Court now has a second chance to make clear that the Bush administration policies in Guantanamo run afoul of the best of American values," said Anthony Romero, executive director of the American Civil Liberties Union. "What's on the line is nothing less than our national commitment to rule of law, and whether we are comfortable being a pariah in the eyes of the world community."
Hamdan is being defended by Navy Lt. Cmdr. Charles Swift, who earlier described his client as aware that his federal court challenges were potentially precedent setting.
"I don't want to make history," Hamdan said, according to his lawyer. "I just want to go home."
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(Rosenberg, who reports for The Miami Herald, wrote this story from Miami.)
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(c) 2005, Knight Ridder/Tribune Information Services.
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