- The Washington Times - Tuesday, November 8, 2005

The Supreme Court yesterday agreed to hear a challenge by Osama bin Laden’s driver to the legality of the special war-crimes tribunal at Guantanamo Bay, Cuba, as the Pentagon announced charges against five more detainees to be tried at the tribunal.

Military officials said two detainees from Saudi Arabia, one from Algeria and one from Ethiopia will be tried on charges that include conspiracy to commit terrorism and attack civilians, murder and destruction of property by an unprivileged belligerent, and attacking civilian objects.

The fifth detainee, 19-year-old Omar Khadr of Canada, is accused of killing a U.S. soldier in combat in Afghanistan and has been held in U.S. military custody since July 2002. The announcement of charges brings to nine the total number of terror suspects — deemed “enemy combatants” by the Bush administration — to be implicated before the special military commission.

Although no trial dates were announced, the tribunal established after September 11 for trying suspects rounded up in the global war on terror is scheduled to reopen this month at the naval base at Guantanamo.

The Supreme Court development, meanwhile, came in the case of Yemen-native Salim Ahmed Hamdan. He is among four other detainees that the administration opened hearings for in the military commission last year.

The court’s agreement to hear Hamdan’s challenge is the latest knot in a tangled legal battle over the status of more than 500 men detained at Guantanamo, most of whom were captured in Afghanistan and have been held for more than three years without being charged.

The Hamdan case presents a potential conflict for new Chief Justice John G. Roberts Jr. because it arrives at the Supreme Court as a challenge to a ruling that he joined earlier this year as a member of the U.S. Court of Appeals for the District of Colombia.

Chief Justice Roberts did not participate in the high court’s decision to hear the case yesterday and said during his recent confirmation process that he would recuse himself from cases on which he had ruled previously as an appeals court judge.

Hamdan brought his challenge to the military commission process last year in U.S. District Court for the District of Colombia, which initially ruled in his favor, prompting the Pentagon to briefly put the process on hold. But in July, a three-judge federal appeals court panel, which included Judge Roberts, overturned the lower court ruling, finding that the Bush administration had legal authority to try suspects detained after September 11 through the special war-crimes commissions.

Bridget Arimond, assistant director of Northwestern University School of Law’s Center for International Human Rights, which filed a brief supporting Hamdan’s challenge, said the appeals court ruling would have “allowed the government to go forward with military commission trials which are inconsistent with international, as well as domestic law.”

But Defense Department officials yesterday were intent on pushing forward with the commissions regardless of the Supreme Court’s review.

“The department continues to believe that the military commission process is the proper venue to try violations of the law of war,” said Maj. Michael Shavers, a Pentagon spokesman.

His remarks were bolstered last night by the announcement of charges against the five additional detainees — Ghassan Abdullah al Sharbi and Jabran Said bin al Qahtani of Saudi Arabia; Sufyian Barhoumi of Algeria; Binyam Ahmed Muhammad of Ethiopia; and Khadr.

Khadr was just 15 at the time of his capture near Khost, Afghanistan, after U.S. officials said he threw a grenade that killed U.S. Army Sgt. Christopher J. Speers. Khadr is the son of suspected al Qaeda financier Ahmed Said Khadr, who was killed in a 2003 shootout at an al Qaeda compound in Pakistan.

The charge sheet against Muhammad says he was arrested in 2002 in Pakistan after conspiring with “dirty bomb” suspect Jose Padilla. Authorities say the two met at a madrassa in Lahore, Pakistan, where “he and Jose Padilla reviewed instructions on a computer in the guesthouse on how to make an improvised ‘dirty bomb.’ ”

Muhammad’s case differs significantly from that of Hamdan, 35, who was captured in Afghanistan in November 2001. During initial hearings before the military commission last year, Hamdan admitted to having served as a driver for bin Laden in Afghanistan, but denied being an al Qaeda member or conspiring to engage in acts of terrorism. He is charged with conspiracy to commit war crimes, murder and terrorism.

In his challenge before the Supreme Court, he is represented by Georgetown University law professor Neal K. Katyal, who in court papers has called the military commission a “contrived system subject to change at the whim of the president.”

In addition to Hamdan and the five men charged yesterday, the Pentagon previously announced conspiracy to commit war crimes charges against Ali Hamza Ahmad Sulayman al Bahlul, 34, also of Yemen; Ibrahim Ahmed Mahmoud al Qosi, 45, of Sudan, and David Hicks, 30, of Australia.

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