The Detainees' New Friends

By Viveca Novak

The Supreme Court last week agreed to review whether the President has the power to hold Yaser Hamdi, a U.S. citizen captured in Afghanistan, without charges or the right to consult a lawyer--as he has been held for two years in a naval brig in South Carolina. Now, sources tell TIME, five of the Pentagon's own lawyers, from its Office of Military Commissions, plan to file a Supreme Court brief challenging Bush's authority to try foreign nationals held at Guantanamo Bay in military tribunals only, barring their access to federal court.

The lawyers plan to file a friend-of-the-court brief in Odah v. United States, which seeks to give Guantanamo captives the right to challenge their detention in civilian court. "The Constitution cannot countenance an open-ended presidential power with no civilian review whatsoever," the brief argues, "to try anyone the President deems subject to a military tribunal, whose rules and judges have been selected by the prosecuting authority itself." Did the dissenting military lawyers meet resistance? Said one of the five, Lieut. Commander Charles Swift: "I'm going to characterize it as institutional surprise." The high court is expected to hear the case in April.

--By Viveca Novak