28 March 2006
Lawyers for a suspected member of al-Qaida argued at the U.S. Supreme Court Tuesday that President Bush does not have the power to set up special military tribunals to try accused terrorists. The man who brought the appeal to the high court is a former driver for Osama bin Laden.
Salim Ahmed Hamdan is one of about 500 suspected terrorists being held at the U.S. naval base at Guantanamo Bay, Cuba. He was taken captive by U.S. forces in Afghanistan late in 2001 and is now awaiting trial as an enemy combatant before a military tribunal on conspiracy charges.
Hamdan denies links to terrorism and says he drove Osama bin Laden to support his family.
President Bush authorized the use of military tribunals to try suspected terrorists captured in Afghanistan and elsewhere in the wake of the 2001 terrorist attacks on the United States.
Hamdan is challenging President Bush's authority to set up the military tribunals, which have been suspended until the Supreme Court rules on this legal challenge.
The high court took the rare step of releasing audiotapes of the oral argument. This is Salim Hamdan's lawyer, Neal Katyal.
"If this were like a criminal proceeding, we would not be here," he said. "The whole point of this is to say that we are challenging the lawfulness of the tribunal itself."
During Tuesday's court session, government lawyer Paul Clement argued that presidents historically have enjoyed the right to appoint military tribunals to try those accused of war crimes.
"The executive branch has long exercised the authority to try enemy combatants by military commissions," said Mr. Clement. "Congress has repeatedly recognized and sanctioned that authority."
Military tribunals or commissions allow rules of evidence that generally favor the prosecution. In addition, the accused may be barred from the proceeding.
Navy Lieutenant Commander Charles Swift has been appointed to represent Hamdan before the tribunal.
"I have never asked for more for my client than a full and fair trial," said Commander Swift. "You see it is not my trial. I am defending him and exercising the right for him on his behalf, but it has to be his right to confront his accusers."
Brad Berenson served as an associate White House counsel in the Bush administration and helped to draw up the legal guidelines to be used in the military tribunals.
"This is the most robust set of procedures that any military commission has ever used in the history of man," said Mr. Berenson. "They are more protective of the rights of the defense than the military commissions that have been used historically by this country and many other countries."
Hamdan is among 10 suspects being held at Guantanamo Bay that have been designated for trial by military commission.
The Hamdan case gives the Supreme Court its first opportunity to rule on a terrorism case since 2004, when the high court decided that detainees captured in the war on terror do have the right to pursue legal challenges in U.S. courts.
The case is complicated by a law passed by Congress late in 2005 that bars federal courts from hearing appeals from detainees who are challenging their detentions in U.S. civilian courts.
Timothy Lynch is a legal expert at the CATO Institute in Washington. He has filed a legal brief in the Hamdan case arguing that the Guantanamo detainees should be accorded the due process of law.
"Now, even though Mr. Bush is acting in good faith, doing what he thinks is right to protect the country, this idea that the president can assume legislative powers to make rules and that he can assume judicial powers to adjudicate the guilt or innocence of persons on trial, this poses a direct challenge to the separation of powers principle of our Constitution," said Mr. Lynch.
A ruling in the case is expected by the end of June. Chief Justice John Roberts recused himself from the case because he was part of a lower court panel of judges that, prior to his appointment by President Bush, ruled against Hamdan.