High court to hear Cuba detainee's appeal
Case of suspected bin Laden bodyguard tests US war powers
WASHINGTON -- The Supreme Court yesterday agreed to hear the appeal of a Guantanamo Bay detainee accused of serving as Al Qaeda leader Osama bin Laden's personal driver and bodyguard, undertaking a major new test of the limits of President Bush's power over military prisoners captured in the war on terrorism.
The court said it will hear the case of Salim Ahmed Hamdan, a Yemeni man who is set to go on trial before the first military commission convened by the United States since World War II. Hamdan's attorneys argue that the commission rules favor the prosecution and that Hamdan has a right to greater safeguards under the Constitution and the Geneva Conventions.
The court's decision to hear the case next spring sets up its second round of consideration of thorny legal issues that arose in the wake of the terrorist attacks of Sept. 11, 2001. The court handed down a set of opinions declaring a limit to Bush's war powers in June 2004, when Justice Sandra Day O'Connor declared that a ''state of war is not a blank check for the President."
The decision by the Supreme Court to hear the case came over the stringent objections of the Bush administration, which had urged it to let stand a lower-court decision upholding its military commissions.
The justices apparently struggled to an unusual degree over whether or not to take the case. The justices privately deliberated over the petition four times before announcing their decision. The court provided no explanation for the delay, and the administration had little comment.
''The Department of Justice looks forward to presenting this important case before the court," said Brian Roehrkasse, a spokesman for the department.
Hamdan's military and civilian defense attorneys, Lieutenant Commander Charles Swift of the Navy and Georgetown University law professor Neal Katyal, declined to comment, citing protocol for attorneys whose cases have been accepted for Supreme Court review.
Hamdan, who has been held for nearly four years at Guantanamo since being detained during the war in Afghanistan, is accused of conspiring to commit war crimes by assisting bin Laden in Afghanistan from 1996 to 2001 while Al Qaeda was plotting to murder civilians and destroy property in various terrorist attacks. Hamdan was captured in late 2001 after the United States invaded Afghanistan.
The Yemeni man was the first Guantanamo detainee charged under Bush's plan to try terrorist suspects before a commission of military officers. Unlike civilian trials and ordinary courts-martial, the commission's rules allow secret proceedings, relax standards for the admission of evidence, and provide no appeal to an independent decision-maker.
Legal activist groups such as Human Rights First have criticized the procedures as unfairly skewed toward the prosecution and a violation of international law.
But David Rivkin, a former associate White House counsel in the George H.W. Bush administration, said that the restrictions are necessary adjustments to protect wartime intelligence. Moreover, he said, terrorists should not be rewarded with the same legal protections afforded to ''honorable" soldiers who wear uniforms, carry arms openly, and avoid targeting civilians.
''A military commission is not a throwback and not a kangaroo court," Rivkin said. ''This is just a different justice system based on a fundamental humanitarian principle: You want to discriminate against unlawful combatants because they're bad people by definition. They're the scourge of humanity. And you want to incentivize people to comply with the laws of war."
Supporters of the movement to maintain checks and balances on presidential power said yesterday that they hope the court's decision in the case will clear up confusion created by the decisions in 2004, when the court provided little specific guidance about what rights and procedures detainees are entitled to receive.
''This case presents huge issues regarding presidential power and the role of the federal courts," said attorney David Remes, who filed a friend-of-the-court brief on behalf of a group of retired military leaders who fear that the Bush administration's policy will undermine the Geneva Conventions and the protections afforded to captured American soldiers.
The high court's announcement that it will take Hamdan's appeal comes amid rising skepticism in Congress over the administration's detention and interrogation policies. Last month, 90 of the 100 senators approved a proposal that would bar the cruel and degrading treatment of detainees by any US official in a vote widely seen as a rebuke to administration policies.
Vice President Dick Cheney has been lobbying Congress to exempt the CIA from any detainee treatment restrictions. Separately, a report that the CIA is holding Al Qaeda detainees in secret prisons in Eastern Europe and elsewhere has led to diplomatic commotion.
Bush sidestepped direct questions about both developments yesterday in Panama, but declared that ''we do not torture" and defended his detainee policies as necessary to prevent terrorist groups from attacking the United States.
Hamdan's trial was just getting started almost exactly one year ago when a federal district judge shut down the commission, holding that Bush had violated the Geneva Convention rights of Guantanamo detainees.
But a federal appeals court in July ruled that Bush, as commander-in-chief, had the power to decide how military detainees will be treated, and that individuals may not bring claims based on alleged violations of the Geneva Conventions in court.
The three-judge appeals court panel included John G. Roberts Jr., who was later named chief justice of the Supreme Court. Roberts has recused himself from the case because of the conflict of interest in reviewing his own decision.
The impact of yesterday's decision on the military commission trial of another detainee, the Australian David Hicks, was unclear. Hicks's trial is due to resume on Nov. 18, but his defense attorney, Major Michael Mori, said yesterday that the trial could not go forward while the legality of the commissions system is under review.
However, it appeared yesterday that Mori will have to go to court for an order to stop his client's trial. Major Jane Boomer, a Pentagon spokeswoman, said the military planned to press forward with commission trials ''until we hear otherwise."
The Defense Department announced that five more Guantanamo detainees have been charged with war crimes. 