Durham, N.C. - Hamdan v. Rumsfeld, which will be argued before the Supreme Court March 28, stands to be a key case in the war on terror, said Scott Silliman, executive director of the Center on Law, Ethics and National Security at Duke University.
A central issue in the case is whether the president had the authority to set up military commissions to try detainees held at Guantanamo Bay, Cuba, said Silliman, professor of the practice of law at Duke. Salim Ahmed Hamdan, an alleged terrorist and former driver for Osama bin Laden, is held at the Guantanamo detention facility.
"Many of the cases which the administration is using to justify its policies regarding the detention and trial of enemy combatants in the war on terrorism were decided after World War II, which was a decidedly different context," Silliman said. "Hamdan gives the Court the opportunity to define this war on terrorism, to give us a more current view of the Constitutional authority of the president in this new type of war and the tools available to him in fighting it. These are terribly significant issues."
There is a chance the justices will decide they lack any jurisdiction to rule in the case, Silliman explained. The government is arguing that the Detainee Treatment Act, signed into law after the Court decided to hear Hamdan, takes away virtually all federal court jurisdiction for dealing with complaints from Guantanamo Bay detainees.
"Under the Detainee Treatment Act, the only provision for judicial review of what the U.S. is doing at Guantanamo is for the Circuit Court of Appeals for the District of Columbia to either review the procedures used to decide whether a detainee is properly being held as an enemy combatant -- a purely administrative procedure -- or to review the final conviction decision by a military commission where the individual has been sentenced either to death or to 10 years or more in prison.
"Hamdan has not yet faced a military commission or been convicted," Silliman said. "Now the Supreme Court has to decide whether the Detainee Treatment Act will apply retroactively or only prospectively." The Court will hear arguments on both issues Tuesday, but rule on the jurisdictional issue first.
"If the Supreme Court determines that it no longer has jurisdiction in Hamdan's case, then for all intents and purposes we may never have any current law on what the president's authority is on the war on terrorism," he noted. Silliman added that the Court still hasn't stated whether it will hear the only other major case that could determine those issues. That case involves alleged terrorist Jose Padilla, an American citizen held in military custody for almost four years before being indicted under federal criminal laws.