Supreme Court to Take Up Dispute Over Military Trials

By David G. Savage, Times Staff Writer

WASHINGTON -- The Supreme Court announced today that it would hear a challenge to the Bush administration's plan to try accused foreign terrorists in special military courts, setting the stage for a ruling on whether the Geneva Convention trumps the president's go-it-alone policy in its anti-terrorism effort.

The case, to be heard in the spring, will set the rules for the first war crimes trials for foreign prisoners since World War II.

The legal battle will take place against a backdrop of growing criticism of the Bush administration's handling of foreign prisoners. To the dismay of some U.S. allies, the White House said four years ago that foreign fighters who were picked up in the war on terrorism were not entitled to the Geneva Convention's protections for prisoners of war.

The Defense Department also has refused to account for all the foreigners being held by the United States or to allow international inspectors to check their conditions.

The Constitution gives Congress the power to "make rules concerning captures on land and water," but lawmakers have not passed rules on the handling of prisoners who were captured in the campaign against terrorism.

Last year, the Supreme Court took a first step toward reining in the White House over its handling of foreign prisoners who were held at Guantanamo Bay, Cuba. The administration had maintained that those men were outside the jurisdiction of the U.S. courts because they were outside U.S. territory.

Disagreeing, the Supreme Court said the Constitution gave these prisoners — and indeed all persons held in U.S. custody — a right to challenge their detentions in court. Some of the men held at Guantanamo said they were innocent victims of warlords in Afghanistan, and they said they should have a chance to prove their innocence.

But the Supreme Court's ruling in their favor stopped short of deciding the precise legal process that would resolve these complaints. It remains unclear today.

The new case, by contrast, is expected to decide the rules for the handful of prisoners who are being charged with war crimes or terrorist offenses.

Salim Ahmed Hamdan was a driver and a bodyguard for Osama bin Laden, the Al Qaeda leader and mastermind behind the Sept. 11, 2001 attacks. The government accused Hamdan of aiding Al Qaeda by delivering weapons and munitions. He was charged with conspiracy to carry out terrorist crimes against civilians.

His lawyers acknowledge that Hamdan was a driver for Bin Laden, but they say he wanted to flee Afghanistan and was not a willing conspirator with Al Qaeda. He has been held at Guantanamo since June 2002.

At issue is whether Hamdan and other accused terrorists are entitled to the legal rules that are standard in a criminal trial or a court martial of a U.S. soldier. For example, does the defendant have to participate in his trial, to see all the evidence against him and to confront his accusers?

The Geneva Convention says prisoners who are captured during war and who are charged with crimes are entitled to be tried under the standard laws of the host country.

But the Bush administration said the terrorists were not part of an organized state and therefore were not entitled to the protections of the 1949 treaty.

In November 2001, the president issued an executive order saying that those picked up for terrorist offenses would be tried by special military commissions. The administration said it would set the rules for these tribunals, and defendants would not have the right to appeal to the U.S. courts.

This announcement was sharply criticized by civil libertarians and by some military lawyers. They feared that the specter of closed military trials would come back to haunt American soldiers in the future.

Last year, a federal judge in Washington blocked the administration from proceeding in its trial of Hamdan. U.S. District Judge James Robertson ruled that the procedures did not comport with the standards set by the Geneva Convention.

Bush's lawyers appealed, arguing that the international treaty did not give the detainees a right to challenge the government in court. They won a 3-0 ruling in the U.S. Court of Appeals in July. Its judges, including John G. Roberts Jr., said Congress gave the president all the authority he needed when it passed the resolution authorizing Bush to use "all necessary and appropriate force" to fight Al Qaeda.

In August, Hamden's lawyers appealed to the Supreme Court. They noted that the Constitution says "all treaties" made and ratified "shall be the supreme law of the land" and carry the force of law. They maintained that the White House was not free to ignore the standards set by the Geneva Convention.

The justices said today they would hear the case of Hamdan vs. Rumsfeld, probably in March. They added that Roberts, now the chief justice, would not take part in the decision because he ruled on the case in the lower court.

Civil libertarians said they were pleased the court would rule on whether the Geneva Convention applied to the war on terrorism.

"The questions this case presents go to the heart of our constitutional system, and, if left unanswered, pose significant threats to our troops," said Deborah Pearlstein, director of security programs at Human Rights First. "These are the first military trials of their kind the United States had conducted since World War II, and we're gratified the court has recognized the need to act."