- The Washington Times - Sunday, March 26, 2006

The Supreme Court will hear oral arguments this week in a case that questions the legality of the special war-crimes commission created to try terror suspects being held at U.S. Naval Base Guantanamo Bay, Cuba.

On Wednesday, the justices will weigh a challenge brought by Salim Ahmed Hamdan, 34, a native of Yemen who once worked as a driver for Osama bin Laden in Afghanistan. The dispute will be the first major case involving presidential war powers since Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. joined the court.

Supreme Court scholars generally agree the legal future of the war on terrorism hinges on the case, which presents the high court with the chance to rule on the power of the executive branch to try terror suspects outside the bounds of U.S. courts.

Lawyers representing Hamdan, one of nine men at Guantanamo charged with war crimes, will argue President Bush lacked authority to create the commission two years ago, and that its design violates the rights of war prisoners under the 1949 Geneva Convention.

The administration will argue that since al Qaeda is not a traditional army, men such as Hamdan who are associated with it are not POWs, but “enemy combatants,” and thus not protected by the Geneva Conventions.

It also will argue that Mr. Bush, as commander in chief, has constitutional authority to create such commissions — an authority bolstered by Congress’ passage of the broad Authorization for Use of Military Force shortly after September 11.

Scott Sillman, a professor at Duke University Law School, contends that “many of the cases which the administration is using to justify its policies regarding the detention and trial of enemy combatants in the war on terrorism were decided after World War II, which was a decidedly different context.”

“Hamdan gives the court the opportunity to define this war on terrorism, to give us a more current view of the constitutional authority of the president in this new type of war and the tools available to him in fighting it,” Mr. Sillman said.

Jeffrey F. Addicott, director of the Center for Terrorism Law in San Antonio, said the case will turn on whether the justices agree with the Bush administration’s definition of war in the aftermath of September 11.

“If you accept the premise that we are in a state of war with the al Qaeda network and their supporters, then the use of military commissions is entirely appropriate,” he said. “If the court does not accept that premise, then they will reject the use of military commissions; therefore, requiring the administration to use the tool kit of domestic criminal law” to try al Qaeda suspects.

Mr. Addicott, who advised the Pentagon in its formation of legal charges against men in the war-crimes commission, advocates allowing the special court to go forward because its rules for evidence are more relaxed than in U.S. federal courts — allowing swifter justice in complicated terrorism cases.

Under the design of the commission, military prosecutors may build their cases against Guantanamo detainees with classified evidence concealed from the detainees.

“The Moussaoui case is a good example,” Mr. Addicott said. “He should have been tried in a military commission. He’s a self-avowed member of al Qaeda and a non-U.S. citizen. The allegations are that he plotted with the 9/11 hijackers.

“Even with a guilty plea, this thing’s been dragging out over three years. It’s ridiculous.”

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