Thu, Mar 30, 2006 page7

• Justices troubled by war trials

  SPECIAL COMMISSIONS US President George W. Bush's plan to use military tribunals to try Guantanamo Bay detainees has outraged some members of the Supreme Court

  • AP
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  Supreme Court justices appear troubled by US President George W. Bush's plans to hold war-crimes trials for foreigners held at Guantanamo Bay, Cuba.

  Several seemed outraged by the government's claim during arguments on Tuesday that a new law had stripped the high court of authority to hear a case brought by Salim Ahmed Hamdan, a Yemeni who once worked as a driver for Osama bin Laden.

  Hamdan has spent almost four years in the US prison at Guantanamo, and the Supreme Court has been asked to decide if he can be put on trial with fewer legal protections before a type of military tribunal last used in the World War II era.

  The appeal could set the stage for a landmark ruling, and the courtroom atmosphere was tense.

  "The use of military commissions to try enemy combatants has been part and parcel of the war power for 200 years," Solicitor General Paul Clement told justices.

  Two years ago the Supreme Court ruled that "a state of war is not a blank check for the president when it comes to the rights of the nation's citizens."

  Hamdan's lawyer, Neal Katyal, told justices that the Bush administration is seeking a "blank check" to do what it wants with foreigners held at Guantanamo Bay.

  The US prison has been a flash point for international criticism because hundreds of people suspected of ties to the al-Qaeda network and the Taliban militia that formerly hosted al-Qaeda in Afghanistan -- including some teenagers -- have been swept up by the US military and secretly shipped there since 2002.

  At first, the Bush administration would not let the detainees see lawyers or notify family where they were, and interrogators used aggressive strategies to extract information.

  Only a few weeks ago, in response to a victory in a lawsuit by The Associated Press, did the administration release names of detainees.

  Justice Stephen Breyer said that lawyers for Hamdan, who faces a single conspiracy count, argue there is no emergency to justify the special trial.

  "If the president can do this, well then he can set up commissions to go to Toledo, and in Toledo pick up an alien and not have any trial at all except before that special commission," Breyer said.

  Without Chief Justice John Roberts, a conservative Bush nominated last year, the argument seemed lopsided against the government. Roberts supported the Bush administration as a lower court judge and had to withdraw from participating at the Supreme Court.

  Justices Antonin Scalia and Samuel Alito gave hints that they support the administration, both suggesting that the high court should delay a decision until after the trial is over -- much as courts do with regular criminal defendants.

  Roberts was on a three-judge panel of the US Court of Appeals for the District of Columbia Circuit that signed off on the military trial for Hamdan.

  Scalia had been asked by five retired generals to withdraw from participating in the case because of remarks he made in a recent speech in Switzerland about "enemy combatants." Scalia said foreigners waging war against the US have no rights under the Constitution.

  The outcome of the case probably will turn on moderate Justice Anthony Kennedy, who questioned Clement several times about the legal safeguards for the trials. Kennedy said that, historically, prisoners have been able to challenge their detentions in court.

  It was unclear whether Clement resolved Kennedy's misgivings. Clement brought up the 2001 terror attacks and said that presidents going back to George Washington used military trials.

  The Bush administration has tried to scuttle the case.
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