Detainee's lawyer asks high court to reject military panel trial

Correction: Because of a reporting error, a story on Wednesday's Nation page incorrectly spelled the name of a lawyer for a Guantanamo detainee whose case was heard by the Supreme Court. The lawyer's name is Neal Katyal.

WASHINGTON -- A lawyer for a Guantanamo Bay detainee yesterday urged the Supreme Court to strike down President Bush's plan to try his client for war crimes before a military commission, opening a new front in the continuing power struggle over the legal limits of presidential power in the war on terrorism.

In one of the most closely watched cases of the Supreme Court's term, the justices wrestled once again with the question of how far Bush can go, as commander in chief during a time of war, in setting aside the normal legal protections for prisoners.

In the case before the court yesterday, Salim Hamdan, a Yemeni accused of being Osama bin Laden's driver, is challenging Bush's plan to try him before a military commission on charges of conspiracy to murder civilians. The trial rules do not give him the right to be present, to see all the evidence against him, or to appeal the verdict to a neutral decision-maker -- as they would in a normal trial.

''This is a military commission that is literally unbounded by the laws, Constitution, and treaties of the United States," said Neal Kaytal, a lawyer for Hamdan.

The impact of the court's decision could be far broader than determining Hamdan's fate. Solicitor General Paul Clement urged the justices to rule that courts no longer have jurisdiction to hear most claims brought by Guantanamo detainees -- a holding that would wipe out several hundred other lawsuits pending in lower courts.

Late last year, Congress enacted the Detainee Treatment Act, which outlawed torture against detainees while curtailing their ability to file lawsuits in federal court.

Congress, however, could not agree on whether the act's restrictions on lawsuits should apply to cases that had already been filed. Detainee lawyers want the existing cases to go forward, but the Bush administration has asked courts to decide that the new law ends all detainee lawsuits.

''Clearly, Congress's most recent action made it clear that the courts no longer have jurisdiction" to hear cases such as Hamdan's, Clement said.

And even if the court decided it can still hear Hamdan's case, Clement said, it should reject his claims that the commission rules are illegally rigged in favor of the prosecution. The power of the commander in chief to set up military commission trials, he said, dates back two centuries.

The Hamdan case marks the first time since World War II that the Supreme Court has considered the legality of military commissions. It is the first time since the Civil War that the court has considered whether Congress can strip it of jurisdiction to rule on a case that it had already decided to hear.

But much of Kaytal's arguments focused on modern laws of war, including the war crimes tribunals set up in Rwanda and the former Yugoslavia. In particular, he said, the charge of ''conspiracy" is not recognized as a war crime.

''The stand-alone offense of conspiracy is rejected by international law because it's too vague," he said. ''The world rejects conspiracy because if it's adopted, it allows so many individuals to get swept up within its net."

Hamdan says he was only a poor servant to bin Laden, and that he never joined Al Qaeda and knew nothing of its plans.

Justice Samuel Alito pressed Kaytal on why Hamdan should receive a right that a normal civilian defendant does not get -- the right to challenge his trial before it begins. Kaytal replied: ''Justice Alito, if this were like a criminal proceeding, we wouldn't be here. . . . This isn't a challenge to some decision that a court makes. This is a challenge to the court itself."

Kaytal also faced skeptical questioning from Justice Antonin Scalia.

Still, the chances that the administration would win the case appeared to be far from certain. One otherwise likely vote for Bush -- Chief Justice John Roberts -- has recused himself from the case, because he ruled on it as a lower court judge, before he was named to the Supreme Court.

Several of the remaining justices expressed doubts about the government's position.

The court is expected to issue a ruling by the end of June.