WASHINGTON (AP):
THE SUPREME Court agreed yesterday to consider a challenge to the Bush administration's military tribunals for foreign terror suspects, a major test of the U.S. government's wartime powers and a case presenting the first conflict for new Chief Justice John Roberts.
Justices will decide whether Osama bin Laden's driver can be tried for war crimes before military officers in Guantanamo Bay, Cuba. Roberts, as an appeals court judge, joined a summer ruling against Salim Ahmed Hamdan, a Yemeni.
He did not participate in yesterday's action, which put him in the difficult situation of sitting in judgment of one of his own rulings. Lawyers for Hamdan were expected to ask Roberts to participate in the case, to avoid a 4-4 tie.
The court's intervention was a surprise. In 2004 justices took 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."
The announcement of the court's move came shortly after President George W.Bush, asked about reports of secret U.S. prisons in eastern Europe for terrorism suspects, declared anew that his administration does not torture suspects.
"There's an enemy that lurks and plots and plans and wants to hurt America again," Bush said during a joint news conference in Panama City with President Martin Torrijos. "So you bet we will aggressively pursue them but we will do so under the law."
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. Trials of Hamdan and three other low-level suspects were interrupted last fall when a judge in Washington said the proper process had not been followed.
The men are among about 500 foreigners, many swept up in the U.S.-led war in Afghanistan, who have been held at the U.S. military prison in Cuba. The government had planned to proceed with a military trial for another foreigner, Australian David M. Hicks, with a pre-trial hearing later this month, but that will likely be stalled now.
Guantanamo Bay has become a flash point for criticism of America overseas and by civil libertarians. Initially, the Bush administration refused to let the men see attorneys or challenge their imprisonment. The high court in 2004 said U.S. courts were open to filings from the men, who had been designated enemy combatants.
Retired military leaders, foreign legislators, historians and other groups had pressed the Supreme Court to review the case of Hamdan, who like many Guantanamo inmates began a hunger strike over the summer.
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 O'Connor seat while the matter was pending.
The administration argued that it was unnecessary for the court to get involved 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 lawyer, Georgetown University professor Neal Katyal, said in a filing that "it is a contrived system subject to change at the whim of the president."
"With constantly shifting terms and conditions, the commissions resemble an automobile dealership instead of a legal tribunal dispensing American justice and protecting human dignity," he wrote.
Hamdan, who was captured in Afghanistan in November 2001, denies conspiring to engage in acts of terrorism and denies he was a member of al-Qaida. He has been charged with conspiracy to commit war crimes, murder and terrorism.
Trial proceedings for Hamdan and three other men were begun last summer but the process was halted after a district court ruled that Hamdan could not be tried by a military commission unless a "competent tribunal" determined first that he was not a prisoner of war.
Besides Hamdan, the others who have been charged are an al-Qaida accountant, a propagandist and a Taliban fighter.
