WASHINGTON -- The Supreme Court agreed Monday to consider a challenge to the Bush administration's military tribunals for foreign terror suspects, a major test of the government's wartime powers.
Justices will decide whether Osama bin Laden's former driver can be tried for war crimes before military officers in Guantanamo Bay, Cuba.
Chief Justice John Roberts, as an appeals court judge, joined a summer ruling against Salim Ahmed Hamdan. He did not participate in Monday's action, which put him in the difficult situation of sitting in judgment of one of his own rulings.
The court's intervention piles more woes on the Bush administration, which has already suffered one set of losses at the Supreme Court and has been battered by international criticism of its detention policies.
"I think it's a black eye for the Bush administration. This opens a Pandora's box," said Michael Greenberger, a Justice Department lawyer in the Clinton administration and law professor at the University of Maryland.
In 2004 justices took up the first round of cases stemming from the government's 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 next spring, in time for O'Connor's successor to take part. Bush has named Samuel Alito, an appeals court judge, to replace her. In his lower court decisions Alito has been deferential to government.
The announcement of the court's move came shortly after President Bush, asked about reports of secret U.S. prisons in Eastern Europe for terrorism suspects, declared anew that his administration does not torture suspects.
Hamdan's case brought a new issue to the court -- the rights of foreigners who have been charged and face a military trial in a type of proceeding resurrected from World War II.
A three-judge panel of the United States Court of Appeals for the District of Columbia Circuit, including Roberts, ruled against Hamdan, finding that the 1949 Geneva Convention governing prisoners of war does not apply to al-Qaida and its members.
The ruling was handed down shortly before Roberts was named to the Supreme Court. Ethics experts have disagreed over whether Roberts should have recused himself from that case, because he was being interviewed for the Supreme Court while the matter was pending.
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 classified information to be shared with defendants "to the extent consistent with national security, law enforcement interests and applicable law." The government also changed the structure of the panels that will hear the cases and decide the men's punishment, with death sentences possible.
Hamdan's attorney, Georgetown University professor Neal Katyal, said in a filing that "it is a contrived system subject to change at the whim of the president."