Judge weighs delaying Gitmo tribunal

Tribunals challenged

By Ben Conery (Contact) | Wednesday, July 16, 2008

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A showdown is looming between the Bush administration and the federal court system over the military's role in prosecuting and trying terrorism suspects detained at the U.S. naval base in Guantanamo Bay, Cuba.

A judge with the U.S. District Court for the District of Columbia on Thursday will consider whether to delay the military tribunal of a key suspect in the war on terror - the former driver of al Qaeda leader Osama bin Laden.

Attorneys for Salim Hamdan asked U.S. District Judge James Robertson last week for the delay so they may use a landmark Supreme Court decision to challenge the legality of the military tribunal system.

Mr. Hamdan, whose military trial is scheduled to begin Monday, would be the first Guantanamo detainee to face a tribunal as an enemy combatant.

The Justice Department said in a court filing Monday that the military tribunal should proceed and that federal courts do not have the authority to delay it.

Mr. Hamdan's attorneys cite the Supreme Court decision last month in Boumediene v. Bush in asking for the delay. The court ruled in the Boumediene case that Guantanamo detainees can challenge their imprisonment through a constitutional right known as habeas corpus.

However, Mr. Hamdan's attorneys are using habeas corpus to challenge the legality of the military tribunals.

"Without an opportunity to resolve these challenges before trial, Hamdan will be irreparably harmed," his attorneys said in a court filing seeking the delay. "His right not to be tried by an unlawful commission will be forever lost."

The government said Mr. Hamdan's challenge is likely to fail.

"The purpose of constitutional habeas is to test the legality of detention, not to challenge a trial in advance," the Justice Department wrote in the court documents filed Monday.

Mr. Hamdan has challenged the legality of the military commissions since 2004.

In 2006, the Supreme Court, as a result of a challenge by Mr. Hamdan, struck down military tribunals created by the Bush administration. That led Congress to create a new system, under which Mr. Hamdan now is charged.

Mr. Hamdan, a Yemeni national, faces up to life in prison if the military tribunal convicts him of supporting terrorism.

The Associated Press reported Tuesday that Mr. Hamdan testified during a pretrial hearing in Guantanamo that he was subjected to sleep deprivation before he was interrogated. His attorneys are asking a military commission to dismiss statements Mr. Hamdan made under coercion.

Mr. Hamdan is one of 20 Guantanamo detainees facing charges, though the government plans to prosecute as many as 80 detainees.

Mr. Hamdan's attorneys have acknowledged that he worked for bin Laden, but say he participated in no acts of terrorism against the United States.

The government contends Mr. Hamdan was bin Laden's bodyguard and delivered weapons to al Qaeda operatives. Mr. Hamdan is accused of helping bin Laden escape capture by U.S. forces in Afghanistan.

Mr. Hamdan was captured in November 2001 on a battlefield in Afghanistan.

According to the government, Mr. Hamdan was riding in a car that contained surface-to-air missiles.

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