WASHINGTON, Jan. 9 - When the Supreme Court agreed two months ago to hear an appeal from a Yemeni detainee at Guantánamo Bay, Cuba, named Salim Ahmed Hamdan, it was evident that an important test of the limits of presidential authority to conduct the war on terror was under way. Now that the final briefs have begun to arrive at the court, in advance of a late March argument, the dimensions of that test appear greater than ever.
Several of the two dozen briefs filed on Mr. Hamdan's behalf late Friday address an issue that was not even part of the case when the justices granted review on Nov. 7: whether the court has jurisdiction to proceed or whether Congress, in a measure that President Bush supported and signed into law on Dec. 30, has succeeded in shutting the federal courthouse doors on Mr. Hamdan and 150 other Guantánamo detainees whose cases are pending at various levels of the federal court system.
If that proved to be the case, the result would be "a nightmare scenario," a group of prominent law professors told the Supreme Court in one of the briefs. "The keys to the courthouse will be placed in the exclusive control of the executive," the brief says, creating "the legal equivalent of incommunicado detention of Japanese aliens in a relocation camp in Idaho." The professors were Burt Neuborne and Norman Dorsen of New York University, Judith Resnik of Yale, and Frank Michelman and David Shapiro of Harvard.
Another brief, filed by the Center for National Security Studies, a civil liberties group, and the Constitution Project, a bipartisan study group, asserts flatly that if the new law, the Detainee Treatment Act of 2005, does in fact strip the Supreme Court of jurisdiction over the Hamdan case, then the law is unconstitutional. ...
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