High court to consider legality of military tribunals

WASHINGTON — The Supreme Court on Monday agreed to rule on the legality of the Bush administration's planned military tribunals for accused terrorists, setting up what could be one of the most significant rulings on presidential war powers since the end of World War II.

President Bush has claimed broad power to conduct the war against al-Qaida and said questions about the detention of suspected terrorists, their interrogation, trial and punishment are matters for him to decide as commander in chief.

But the court's announcement that it would hear the case of Osama bin Laden's former driver, Salim Ahmed Hamdan, shows that the justices think the judicial branch has a role to play as well. The court has focused on whether Bush has the power to set up the tribunals, called commissions, and whether detainees facing military trials can go to court in the United States to secure the protections guaranteed by the Geneva Conventions.

The justices have chosen to intervene at a sensitive time for the Bush administration. The Senate is mounting its first sustained challenge to the administration's claim that it alone can determine what interrogation methods are proper for terror detainees. The United States has come under fire after disclosures that the Central Intelligence Agency has been interrogating suspects at secret prisons in Eastern Europe and Asia.

All of that will be in the background as the court considers a case that will turn on its view of whether the other branches of government can and should permit the executive branch to make all the rules in the battle against al-Qaida.

"The discomfort some justices may have with U.S. foreign policy is bound to lap over" into their views of the legal issues, said Michael Glennon, a professor of international law at the Fletcher School of Law and Diplomacy at Tufts University near Boston. "There is no question the justices live in this world, and they read the newspapers."

Both issues — military commissions and the Geneva Conventions — are intertwined and go back to the earliest days after the attacks of Sept. 11, 2001.

On Nov. 13, 2001, Bush issued a "military order" declaring that panels of military officers would try suspected terrorists for violations of the laws of war. The administration argued that military trials are necessary because the regular processes of civilian justice cannot deal with a shadowy foe such as al-Qaida. It says the president has the power to establish commissions under his constitutional authority as commander in chief, the congressional resolution that authorized the use of force against al-Qaida and other statutes.

Under regulations developed by the Pentagon in response to early criticisms of the commissions, defendants before military commissions would enjoy a presumption of innocence, access to an attorney and other protections.

Also early in the war, the White House decided, over the strong objections of the State Department, that suspected al-Qaida terrorists captured in Afghanistan and elsewhere should not be entitled to the protections of the Geneva Conventions. They are not prisoners of war but "unlawful combatants" for whom the conventions offer no legal benefits, the administration says. As a result, they can be tried before military commissions, rather than courts-martial, which offer more procedural protections.

Hamdan's attorneys argue that Congress authorized the president only to detain enemy combatants — not to try them. Any commissions would have to be established with Congress' express approval, or else they could be changed and manipulated by the president alone, they argue.

In their brief to the court, Hamdan's lawyers argue that the Geneva Conventions entitle their client to an impartial hearing to determine whether he qualifies as a prisoner of war, and to a court-martial — unless he is found to be an unlawful combatant.

Hamdan's tribunal began in August 2004 but was halted by U.S. District Judge James Robertson in Washington. A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit — including now Chief Justice John Roberts — overturned Robertson's ruling in July.

Roberts has recused himself in Hamdan's appeal to the Supreme Court.

Oral arguments are scheduled for March, and a decision is due by July. A 4-4 tie would result in the affirmation of the lower court's ruling, which upheld the administration's policies. That outcome would probably permit the trials to go ahead, but it would not create a binding legal precedent.

The government says Hamdan, one of about 500 terrorist suspects imprisoned at Guantánamo Bay, Cuba, was a confidant and bodyguard of bin Laden's from 1996 to 2001 and helped transfer weapons from Taliban stockpiles to al-Qaida. Hamdan says he was a mere chauffeur. He says he has cooperated with American interrogators but that they have mistreated him and held him in solitary confinement since December 2003.

Also Monday, Defense Department officials announced that charges have been approved for five more "enemy combatants" held at Guantánamo and that they could face military commissions soon.

The department said a variety of charges — including murder, terrorism and aiding the enemy — will go forward against Ghassan Abdullah al Sharbi and Jabran Said bin al Qahtani of Saudi Arabia; Sufyian Barhoumi of Algeria; Binyam Ahmed Muhammad of Ethiopia; and Omar Ahmed Khadr of Canada.

According to military documents, Khadr is a Canadian juvenile who has admitted being trained at al-Qaida camps and claims to have planted land mines in Afghanistan and to have killed a U.S. soldier there.

The others have been linked to international terrorism and allegedly trained in al-Qaida camps, associated with top terrorist leaders or were known to U.S. officials as possibly training for attacks here.