- The Washington Times - Tuesday, January 18, 2005

A request by al Qaeda founder Osama bin Laden’s personal chauffeur, now held by U.S. authorities at the U.S. Naval Base Guantanamo Bay, Cuba, for an expedited ruling on the legality of military tribunals for terrorism suspects was rejected yesterday by the Supreme Court.

Yemenite national Salim Ahmed Hamdan, one of 550 U.S. detainees from 40 countries held in Cuba in the wake of the 2001 war in Afghanistan and the ongoing battle against global terrorism, had sought to fast-track his case, bypassing the appeals court process to get an immediate ruling by the Supreme Court.

The high court’s ruling was a victory for the Justice Department, which argued for a denial — saying the Supreme Court would benefit from a review of the issues through the appellate process. The refusal to hear the case means it will be returned to the appeals court for review — a process that could take more than a year.

The Supreme Court turned down Hamdan’s appeal without comment or recorded dissent. He was charged with conspiracy to commit war crimes, murder, terrorism and transporting weapons to al Qaeda. Hamdan, 34, served as bin Laden’s driver from 1996 to 2001.

In November, U.S. District Judge James Robertson in Washington stopped Hamdan’s military trial in Guantanamo, saying the Bush administration failed to provide fair hearings for detainees brought before military tribunals. He said a tribunal was necessary to determine whether prisoners were entitled to be considered prisoners of war with legal protections under the Geneva Conventions.

Judge Robertson ruled that the trial could not proceed until a decision was made on whether Hamdan was a prisoner of war under the Geneva Conventions and until the rules were changed to allow him to see the evidence against him and to be present at all court proceedings.

President Bush and his legal advisers, most noticeably White House Counsel and Attorney General-designate Alberto Gonzales, contended that noncitizen Guantanamo Bay detainees were “enemy combatants” and did not qualify for the protections accorded prisoners of war.

Hamdan’s attorneys asked the Supreme Court to put the case on a fast track and rule immediately on its merits, saying the case “challenges an unprecedented and dangerous expansion of executive branch authority cloaked in the exercise of the president’s war powers.”

Neal Katyal, one of Hamdan’s attorneys, said in court papers that the case was not just about those being detained in Cuba who face trials, but about “the well-being of Americans and other individuals from around the world who have been or may be captured in armed conflicts.”

But Paul D. Clement, the Bush administration’s acting solicitor general, argued that it could be premature for the high court to make a determination at this point that could affect “the exercise of the president’s core commander in chief and foreign affairs authority.

“The concern for interference with military exigencies is only heightened here, where the military proceedings involve enforcement of the law of war in the midst of an ongoing armed conflict against an enemy force that is targeting civilians for mass death,” Mr. Clement said in court papers.

Justice Department attorneys argued that Mr. Bush had “properly determined” the Geneva Conventions did not apply to al Qaeda terrorists. They said the president’s power to convene military commissions was “inherent in his authority as commander in chief” and had been memorialized by Congress.

The attorneys said that by conferring protected legal status under the Geneva Conventions on al Qaeda members, Judge Robertson put terrorism on the same legal footing as legitimate methods of waging war, adding that “the Constitution entrusted to the president the responsibility to safeguard the nation’s security.”

The U.S. Court of Appeals for the District of Columbia Circuit is now scheduled to hear the case, which ultimately could be reviewed by the Supreme Court.

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