In 2004 the justices took up the first round of cases stemming from the war on terrorism. Justice Sandra Day O'Connor, who is retiring, wrote in one case that "a state of war is not a blank check for the president when it comes to the rights of the nation's citizens."
Arguments in the Hamdan case will be scheduled in time for O'Connor's successor to take part. Senate confirmation hearings are planned for January for Alito, who often has been deferential to government in his appeals court rulings.
Hamdan is among about 500 foreigners who were designated "enemy combatants" and imprisoned at the U.S. military prison in Cuba.
Guantanamo Bay has become a flash point for criticism of America overseas and at home. Initially, the Bush administration refused to let the men see attorneys or challenge their imprisonment in courts. The Supreme Court in 2004 said U.S. courts were open to filings from the men, although justices may be called on to clarify the legal rights of the detainees in a separate appeal.
"Guantanamo, in the eyes of the rest of the world, is a blot on American justice. Around the world, this will be as important if not more so than it is in the United States," said Stephen Saltzburg, a law professor at George Washington University who filed a brief urging the court to take Hamdan's case.
The case brings a new issue to the court _ the rights of foreigners who have been charged with war crimes and face a trial before military officers with possible death sentences.
Retired military leaders, foreign legislators, historians and other groups had pressed the Supreme Court to review the case of Hamdan, who like many Guantanamo inmates began a hunger strike over the summer.
A district judge last November sided with Hamdan, a Yemeni who was 34 at the time. But the administration won an appeal before a panel of the United States Court of Appeals for the District of Columbia Circuit. The panel, including Roberts, said that the 1949 Geneva Convention governing prisoners of war does not apply to al-Qaida and its members.
The administration argued that it was unnecessary for the court to hear Hamdan's case because the Pentagon had relaxed the rules for tribunals, enabling more information to be shared with defendants, and because the government had changed the structure of the panels.
Hamdan's lawyer, Georgetown University professor Neal Katyal, said in a filing that "it is a contrived system subject to change at the whim of the president."
"With constantly shifting terms and conditions, the commissions resemble an automobile dealership instead of a legal tribunal dispensing American justice and protecting human dignity," he wrote.
Hamdan's attorneys may ask Roberts to participate in the case to avoid a 4-4 tie.
The case is Hamdan v. Rumsfeld, 05-184.
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On the Net:
Military tribunals: http://www.defenselink.mil/news/commissions.html
Supreme Court: http://www.supremecourtus.gov/
