Supreme Court to hear military tribunals case


WASHINGTON -- The Supreme Court announced yesterday that it would hear a challenge to the Bush administration's plan to try foreign terrorism suspects in special military courts, setting the stage for a ruling on whether the Geneva Conventions trump the president's go-it-alone policy in the war on terrorism.

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 captured in the war on terrorism were not entitled to the Geneva Conventions' protections for prisoners of war because groups such as al-Qaida were not government entities or signatories to the agreement.

The Defense Department has also refused to account for all the foreigners being held by the United States or to allow international inspectors, such as representatives from the International Committee of the Red Cross, to check on the conditions of every terrorism suspect in U.S. custody.

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

Last year, the Supreme Court took a first step toward reining in the White House over its handling of foreign detainees held at Guantanamo Bay, Cuba. The administration had maintained that these men were outside the jurisdiction of U.S. courts because they were outside of 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 had described themselves as innocent victims of warlords in Afghanistan and 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, will 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 al-Qaida leader Osama bin Laden, the mastermind of the Sept. 11 attacks. The government accused Hamdan of aiding al-Qaida 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 did not willingly conspire with al-Qaida. He has been held at Guantanamo since June 2002.

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

Under the Geneva Conventions, prisoners who are captured during war and charged with crimes are entitled to be tried under the standard laws of the host country. But the Bush administration claimed that because terrorists are not part of an organized state, they are not entitled to the protections of the 1949 treaty.

In November 2001, President Bush issued an executive order saying that persons 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 U.S. soldiers in the future.

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

The administration'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 for the District of Columbia Circuit in July.

The appellate judges - including John G. Roberts Jr., who was sworn in Sept. 29 as chief justice of the United States - said Congress had given the president all the authority he needed when it passed the resolution authorizing Bush to use "all necessary and appropriate force" to fight al-Qaida.

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

The justices said yesterday that they would hear the case of Hamdan v. Rumsfeld, probably in March. Roberts has recused himself from the case because he ruled on it in the appellate court.

Civil libertarians said they were pleased that the court would rule on whether the Geneva Conventions apply 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," she said.

David G. Savage writes for the Los Angeles Times.

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