- The Washington Times - Wednesday, March 29, 2006

The attorney for Osama bin Laden’s former driver yesterday told the Supreme Court the Bush administration never was given permission to create a special war crimes tribunal to try suspected terrorists at Guantanamo Bay.

Neal K. Katyal, a Georgetown University Law School professor representing Salim Ahmed Hamdan, said the tribunal is “literally unburdened by the laws, Constitution and treaties of the United States.”

“This is an ad-hoc trial in which the procedures are all defined by the president,” he said, arguing that Congress never gave President Bush authority to create the tribunal, and that its existence violates Geneva Convention rights of war prisoners.

Solicitor General Paul D. Clement dismissed those assertions, saying that in creating the tribunal Mr. Bush used “an authority that has essentially been invoked by every president in every war throughout the country’s history.”

The administration says al Qaeda is not a traditional army and that men like Hamdan are not POWs, but “enemy combatants,” and thus not protected by the Geneva Convention.

“I don’t think the Geneva Convention applies,” said Mr. Clement, who argued the tribunal was bolstered by Congress’ passage of the Detainee Treatment Act of 2005.

Hamdan, a 34-year-old native of Yemen, is one of 10 Guantanamo inmates charged with war crimes in the tribunal, and one of dozens who have filed petitions in U.S. federal courts challenging their detention at the naval base.

Justice Samuel A. Alito Jr. said it seemed unusual for the Supreme Court to be weighing what sounded like an appeal to the conspiracy to commit war crimes, murder and terrorism charge before the case had fully played out in the tribunal.

“In criminal litigation, review after litigation is the general rule,” he said.

Justice Stephen G. Breyer questioned the administration’s authority to create the tribunal, asking what would stop the president from holding special trials in the future in any place he chose, such as “Toledo, Ohio,” rather than exclusively at Guantanamo.

The tribunal is free of constraints that define trials in federal courts. A panel of military officers preside over each case, and military prosecutors are allowed to use classified evidence concealed from the detainees. Human rights groups say the design unfairly stacks the deck against defendants.

Months before the tribunal opened in November 2004, the Supreme Court ruled that U.S. federal courts have legal authority to preside over challenges brought by the some 500 foreign nationals held at Guantanamo.

Mr. Katyal used the ruling to file a petition on Hamdan’s behalf in U.S. District Court for the District of Columbia. The court ruled in favor of Hamdan, prompting the Pentagon to briefly halt all tribunal activity at Guantanamo. A federal appeals court then reversed the ruling and Hamdan petitioned the high court to review.

New Chief Justice John G. Roberts Jr. recused himself because as a federal appeals judge he ruled in favor of allowing the tribunal last year.

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