Wall
Street Journal Online (November 7, 2005).
WASHINGTON (AP) -- The Supreme Court agreed Monday to
consider a challenge to the Bush administration's military
tribunals for foreign terror suspects, a major
test of the government's wartime powers
and a case presenting the first conflict for new Chief Justice John Roberts.
Justices will decide whether Osama bin Laden's driver can be
tried for war crimes before military officers in Guantanamo Bay, Cuba.
Roberts, as an appeals court judge, joined a summer ruling
against Salim Ahmed Hamdan.
He did not participate in Monday's action, which put him in
the difficult situation of sitting in judgment of one of his own rulings.
Lawyers for Hamdan were expected to ask Roberts to participate in the case, to
avoid a 4-4 tie.
The court's intervention was a surprise. In 2004 justices
took the first round of cases stemming from the government's war on terrorism.
Justice Sandra Day O'Connor, who is retiring, wrote in one case that ''a
state of war is not a blank check for the president when it comes to the rights
of the nation's citizens.''
The announcement of the court's move came shortly after
President Bush, asked about reports of secret U.S. prisons in Eastern Europe
for terrorism suspects, declared anew that his administration does not torture
suspects.
''There's an enemy that lurks and plots and plans and wants
to hurt America again,'' Bush said during a joint news conference in Panama
City with President Martin Torrijos. ''So you bet we will aggressively pursue
them but we will do so under the law.''
Hamdan's case brought a new issue to the court -- the rights
of foreigners who have been charged and face a military trial in a type of
proceeding resurrected from World War II. Trials of Hamdan and three other
low-level suspects were interrupted last fall when a judge in Washington said
the proper process had not been followed.
The men are among about 500 foreigners, many swept up in the
U.S.-led war in Afghanistan, who have been held at the U.S. military
prison in Cuba. The government had planned to proceed with a military trial for
another foreigner, Australian David M. Hicks, with a pretrial hearing later
this month, but that will likely be stalled now.
Guantanamo Bay has become a flash point for criticism of
America overseas and by civil libertarians. Initially, the Bush administration
refused to let the men see attorneys or challenge their imprisonment. The
high court in 2004 said U.S. courts were open to filings from the men, who had
been designated enemy combatants.
Retired military leaders, foreign legislators, historians
and other groups had pressed the Supreme Court to review the case of Hamdan,
who like many Guantanamo inmates began a hunger strike over the summer.
A three-judge panel of the United States Court of Appeals
for the District of Columbia Circuit, including Roberts, ruled against Hamdan, finding
that the 1949 Geneva Convention governing
prisoners of war does not apply to al-Qaida and its members.
The ruling was handed down shortly before Roberts was named
to the Supreme Court. Ethics experts have disagreed over whether Roberts should
have recused himself from that case, because he was being interviewed for the
O'Connor seat while the matter was pending.
The administration argued that it was unnecessary for the
court to get involved because the Pentagon had relaxed the rules for tribunals,
enabling classified information to be shared with defendants ''to the extent
consistent with national security, law enforcement interests and applicable
law.'' The government also changed the structure of the panels that will hear
the cases and decide the men's punishment, with death sentences possible.
Hamdan's lawyer, Georgetown University professor Neal
Katyal, said in a filing that ''it is a contrived system subject to change at
the whim of the president.''
''With constantly shifting terms and conditions, the
commissions resemble an automobile dealership instead of a legal tribunal
dispensing American justice and protecting human dignity,'' he wrote.
Hamdan, who was captured in Afghanistan in November 2001,
denies conspiring to engage in acts of terrorism and denies he was a member of
al-Qaida. He has been charged with conspiracy to commit war crimes, murder and
terrorism.
Trial proceedings for Hamdan and three other men were begun
last summer but the process was halted after a district court ruled that
Hamdan could not be tried by a military commission unless a ''competent
tribunal'' determined first that he was not a prisoner of war.
Besides Hamdan, the others who have been charged are an
al-Qaida accountant, a propagandist and a Taliban fighter.
The case is Hamdan v. Rumsfeld, 05-184.