US Court hears Guantanamo case,00.html


THE US Supreme Court heard arguments Tuesday in a landmark case challenging the legality of military tribunals set up to try detainees at the Guantanamo Bay "war on terror" camp.

Al-Qaeda leader Osama bin Laden's former driver, Salim Ahmed Hamdan, has asked the highest US court to declare the military tribunals created by President George W. Bush unconstitutional.

In addition to pitting a Guantanamo detainee against the US administration, the case also raises questions of the balance of power between the three branches of the US government, and the high court's ability to curb presidential powers, broadly defined since the September 11, 2001 attacks.

Lawyers for the Bush administration say Hamdan and other detainees at Guantanamo are "enemy combatants" without habeas corpus rights, and that a new law adopted by Congress denies the Supreme Court jurisdiction in the case.

Hamdan, a Yemeni national, was captured in Afghanistan in November 2001 and transferred several months later to the US naval base in Guantanamo Bay, Cuba, where he is due to be tried by a military tribunal, on charges of conspiring with bin Laden and other Al-Qaeda members to attack civilians.

While acknowledging that he worked as a driver for bin Laden, Hamdan insists he took no part in terrorist activities.

The Detainee Treatment Act of 2005, which prohibits torture and abuse of detainees held by the United States, included an amendment that strictly limits the right to appeal for Guantanamo detainees.

It permits detainees to file appeals only after a verdict is handed down by a military tribunal, and only before a federal appeals court in Washington, without any role for the Supreme Court.

Administration lawyers have argued that the legislation constitutes an implicit validation of the military tribunals by the legislative branch.

"That kind of backdoor approval has never been sufficient" to give a group of people the right to sentence others to death or life imprisonment, Hamdan's lawyer Neal Katyal argued Tuesday.

"If a group of people wants to try somebody, we have to wait until they ruled before we can challenge the trial?" Justice Anthony Kennedy asked solicitor general Paul Clement, who is representing the administration.

"It is not a group of people, it is the president of the United States of America," Clement replied.

Katyal argued that the legislative branch of government must participate in the creation of such extraordinary tribunals so as not to "give the president a blank check ... to detain someone for years on end."

The military tribunals do not acknowledge basic rights such as the right to be present at one's own trial, and considering conspiracy a war crime opens the door to excess, he argued.

But Clement countered that "the president acted in consistence with 150 years of tradition."

The case comes before the court amid mounting international criticism of the Guantanamo prison and the US government's treatment and prosecution of detainees. Critics say the military tribunals operate outside of standard US legal or international legal norms.

Only 10 of some 490 detainees at Guantanamo have been charged by the military tribunals since the prison was set up more than four years ago and no verdicts have been issued so far.

If the Supreme Court upholds the administration's stance, then dozens of appeals filed in US courts on behalf of Guantanamo detainees would be thrown out.

Such an outcome would leave a legal vacuum as to the outlines of presidential war powers since the September 11 attacks, legal analysts said.

"If the Supreme Court determines that it no longer has jurisdiction in Hamdan's case, then for all intents and purposes we may never have any current law on what the president's authority is on the war on terrorism," said Scott Silliman, executive director of the Center on Law, Ethics and National Security at Duke University.

Only eight of nine justices are hearing the case. Chief Justice John Roberts recused himself because he ruled on the matter previously as a judge on a lower federal court, which rejected Hamdan's claim.

With only eight judges taking part, a possible 4-4 tie would leave the earlier ruling in place. The court's decision is expected by July.