High Court To Hear Case On War Powers
Use of Military Panels For Detainees Is Tested

By Charles Lane
Washington Post Staff Writer
Tuesday, November 8, 2005

The Supreme Court yesterday agreed to rule on the legality of the Bush administration's planned military commissions 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 Qaeda and said that 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 feel the judicial branch has a role to play as well. The court has focused on whether Bush has the power to set up the 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 detainees. The United States has come under fire after disclosures that the CIA has been interrogating suspects at secret "black sites" in Eastern Europe.

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 Qaeda.

"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 J. Glennon, a professor of international law at the Fletcher School of Law and Diplomacy at Tufts University. "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 terrorist attacks of Sept. 11, 2001. The administration's approach to them helped generate some of the first policy debates of the war, inside and outside the administration.

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 Qaeda. It says the president has the power to establish commissions under his constitutional authority as commander in chief, the Sept. 18, 2001, congressional resolution that authorized the use of force against al Qaeda 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 a lawyer and other protections.

Also early on in the war, the White House decided, over the strong objections of the State Department, that suspected al Qaeda 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 court-martials, which offer more procedural protections.

But Hamdan's attorneys argue that Congress authorized the president to detain enemy combatants -- not to try them. Any commissions would have to be established with Congress's 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 G. Roberts Jr., overturned Robertson in July; Roberts has recused himself in Hamdan's appeal to the Supreme Court. For a time, it seemed as if the court might honor the administration's request that it stay out of the dispute. The case, Hamdan v. Rumsfeld , No. 05-184, had languished on the court's weekly conference agenda for about a month, suggesting that the justices were preparing to rebuff Hamdan's appeal. The former aide to Osama bin Laden is at Guantanamo Bay, Cuba, and is charged with conspiring to commit terrorist acts.

"It's a little surprising, because one would have thought the court would have wanted to see whether Hamdan was found not guilty," Glennon said. "Therefore, the court seems disinclined to sit by the sidelines and defer to the executive's judgment as to what rule ought to govern."

An oral argument is scheduled for March and a decision due by July. A 4 to 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 Guantanamo Bay, was bin Laden's confidant and bodyguard from 1996 to 2001 and helped transfer weapons from Taliban stockpiles to al Qaeda. But Hamdan says he was a mere chauffeur. He says that he has cooperated with U.S. interrogators but that they have mistreated him and held him in solitary confinement since December 2003.

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

The department said charges will go forward against Ghassan Abdullah Sharbi and Jabran Said bin Qahtani of Saudi Arabia; Sufyian Barhoumi of Algeria; Binyam Ahmed Muhammad of Ethiopia; and Omar Ahmed Khadr of Canada.

Four are charged with conspiracy to attack civilians, attack objects, murder, terrorism and destruction of property. Khadr is charged with conspiracy to murder and attempted murder, and with "aiding the enemy," according to a military statement.

According to military documents, Khadr is a juvenile who has admitted being trained at al Qaeda 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 Qaeda camps, associated with top terrorist leaders or were known to U.S. officials as possibly training for attacks here.

Like Hamdan, some of the detainees have claimed abuse by U.S. soldiers.

In another development, Sen. Lindsey O. Graham (R-S.C.), a member of the Armed Services Committee, said he hopes to add language to the defense authorization bill that would eliminate habeas rights for detainees captured during the terrorism fight to halt the "the never-ending litigation that is coming from Guantanamo."

Graham, who has also proposed an amendment that would put the military tribunals at Guantanamo Bay under congressional supervision, said his package -- combined with Sen. John McCain's (R-Ariz.) that limits U.S. interrogation practices -- would allow the United States to "regain the moral high ground" in the war.

Staff writer Josh White and researcher Julie Tate contributed to this report.

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