[JURIST] Most of the eight US Supreme Court [official website] justices hearing oral arguments Tuesday in Hamdan v. Rumsfeld [Duke Law backgrounder; merit briefs] appeared skeptical of the Bush administration's contention that special military tribunals established by the President [Military Order text] not adhering to either standard US military procedure or the Geneva Convention [text] can be used to prosecute suspected terrorists as war criminals. Salim Hamdan [Trial Watch profile], a former driver for Osama bin Laden, was the first Guantanamo Bay prisoner to challenge his trial before a military commission [JURIST news archive] rather than in front of an ordinary military court. Hamdan's lawyer argued that the commission system is unfair because it allows President Bush's military subordinates to determine who will act as judge and jury and also decide which crimes will be prosecuted.

During Tuesday's oral arguments in the case, the justices also criticized Congress for its recent decision in the Detainee Treatment Act [JURIST document] to take away federal court authority to hear habeas claims brought by Guantanamo Bay [JURIST news archive] prisoners. Justices John Paul Stevens, Stephen Breyer, Anthony Kennedy, and David Souter all sharply challenged any potential barrier to their review of Hamdan's case. Meanwhile, Justices Antonin Scalia and Samuel Alito defended the government's argument that Hamdan is not entitled to the protections of the Geneva Convention because he was not part of a uniformed enemy. Chief Justice John Roberts did not take part in Tuesday's sitting as he had previously ruled on the case in favor of the government while sitting as a judge on the US DC Circuit Court of Appeals. The Los Angeles Times has more. SCOTUSblog has additional coverage.