Supreme Court to review Bush's wartime powers again

WASHINGTON -- His wartime powers undercut once before by the Supreme Court, President Bush could take a second hit in a case in which Osama bin Laden's former driver is seeking to head off a trial before military officers.

At stake is more than whether Salim Ahmed Hamdan, after nearly four years at the Navy prison in Guantanamo Bay, Cuba, goes on trial for war crimes before a special military commission.

Analysts say that if the high court rejects Bush's plan to hold such trials for the first time since the aftermath of World War II, it could rein in the president's expanded powers in pursuing and punishing suspected terrorists.

In addition to special military trials for Hamdan and others, the Bush administration since the attacks of Sept. 11, 2001, has contended that it has the authority to eavesdrop on telephone conversations without court oversight, aggressively interrogate foreigners, and imprison people without giving them their traditional legal rights.

Hamdan was one of hundreds of people captured during the 2001 US-led war that drove the Taliban from power in Afghanistan. The native of Yemen denies that he is a terrorist and says he took the driving job to provide for his young family.

Hamdan's appeal, set for arguments Tuesday, is one of the biggest cases of the court's current term, the first for Chief Justice John G. Roberts Jr. Roberts, however, will not participate in the Hamdan case. Last year, he was on a three-judge panel of the US Court of Appeals for the District of Columbia Circuit that ruled unanimously against Hamdan.

It is that ruling the Supreme Court now is reviewing.

With Roberts withdrawing from the case, the high court could split 4 to 4, leaving the appeals court ruling in place. A ruling is expected before July.

''The stakes are very high for this administration, because it has predicated all of its policies in this war on terror on the principle that the president as commander in chief cannot be constrained by Congress or the courts," said Scott Silliman, a former military lawyer who teaches at Duke University.

''If the court in any way limits presidential authority with regard to military commissions, it will spill over into other areas of his authority in this new type of war," Silliman said.

A second element of Bush's terrorism-fighting measures is under scrutiny as the Senate Judiciary Committee on Wednesday examines the president's domestic eavesdropping program, which The New York Times disclosed in December.

Since shortly after the attacks of Sept. 11, 2001, the National Security Agency has monitored the international communications of people inside the United States when their calls and e-mails are believed to be linked to terrorism.

The government normally has to get a court order to monitor domestic communications; Bush signed an executive order directing the NSA to conduct the operations without a judge's approval.

Hamdan may find hope for his appeal in a pair of 2004 rulings in which the justices rejected the president's claim of authority to seize and detain terrorism suspects while indefinitely denying access to courts or lawyers.

Justice Sandra Day O'Connor wrote at the time that ''a state of war is not a blank check for the president when it comes to the rights of the nation's citizens."

O'Connor has been replaced by Samuel A. Alito Jr., who could play a prominent role in the Hamdan case. As a former Reagan administration lawyer, he could be sympathetic to White House arguments.