Court Case Challenges Power of President

But that did not persuade critics who pointed out that the executive branch would still be the only one deciding who is an "unlawful enemy combatant" eligible for trial in the first place.

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Critics also argue that the Geneva Conventions require that each detainee should be given an individual hearing, with access to the federal courts through habeas corpus.

Historically, the courts have been reluctant to take on presidents during wartime. As a result, Lazarus said, Hamdan's supporters "need to make it clear there is a reason not to trust" Bush with unchecked power. That reason, Lazarus noted, may come from the allegations of torture at Guantanamo Bay and at Abu Ghraib prison in Iraq, which surfaced in 2004 and are discussed extensively in briefs on Hamdan's side.

Several members of the court are especially sensitive to international opinion, which has generally seen Guantanamo as a symbol of U.S. excesses in the war against al-Qaeda. The court has been bombarded by friend-of-the-court briefs urging it to think about the impact of the Hamdan case on the image of the United States abroad.

Two years ago, the Supreme Court ruled 6 to 3 that federal law gave U.S. courts the power to hear the prisoners' challenges to their detention at Guantanamo Bay. In a separate case involving an American citizen held there, a plurality of justices noted that the court would not give the president "a blank check" on national security matters.

That triggered a flood of habeas corpus petitions, including Hamdan's, from lawyers representing hundreds of Guantanamo Bay prisoners.

Hamdan's attorneys say that neither the broadly worded Sept. 14, 2001, House-Senate resolution that endorsed the use of force against al-Qaeda nor older statutes give Bush the clear legislative approval he needs to set up the commissions. They also contend that the commissions violate the Geneva Conventions, which, they say, are enforceable by U.S. courts and entitle Hamdan to the same kind of trial a U.S. soldier would get from a court-martial.

The rules of the tribunals, which allow evidence that "would . . . have probative value to a reasonable person," provide no guarantee against the use of evidence gathered through torture, Hamdan's supporters say.

In response, the Bush administration notes that military commissions have a long history in war and were contemplated by the Sept. 14, 2001, resolution.

But the administration's brief, written by Solicitor General Paul D. Clement, also says that "even if Congress's support for the President's Military Order were not so clear, the President has the inherent authority to convene military commissions to try and punish captured enemy combatants in wartime -- even in the absence of any statutory authorization."

As for the Geneva Conventions, they are not enforceable by U.S. courts and do not apply to Hamdan because al-Qaeda is a terrorist network that has not signed the conventions and regularly violates them, the administration says.

So far, the administration has prevailed. Last year, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit, one of whose members was Roberts, upheld the administration's position, overruling a decision in Hamdan's favor by the U.S. District Court in Washington.

After the Supreme Court agreed to hear Hamdan's appeal of the D.C. Circuit's ruling, Congress stepped in.

The Detainee Treatment Act (DTA), enacted in December, reinforces the president's authority under the Sept. 14 resolution, the administration says. By modifying the rules related to the commissions, the measure implicitly accepts their legitimacy, the administration says.

The DTA stripped federal courts of jurisdiction over habeas corpus petitions from the Guantanamo Bay detainees "pending on or after" the date of its enactment -- and it provides an alternative military process for reviewing their enemy combatant status, to be followed by appeals to the D.C. Circuit court. Under the law, that court is the exclusive venue for appeals of military commission verdicts.

On Jan. 12, the administration asked the Supreme Court to dismiss the Hamdan case, arguing that it is covered by the "pending on or after" phrase. The proper time for his constitutional challenge is after his trial, the administration argued.

But Hamdan's attorneys contend that the DTA was a compromise intended to apply only to new cases, not to those that had already been filed. At a minimum, it does not provide a clear enough statement of congressional intent to deny Hamdan and others a day in court, they say.

The case is Hamdan v. Rumsfeld , No. 05-184. A decision is expected by July.