High court to review military trials
By James Vicini
WASHINGTON (Reuters) – The U.S. Supreme Court said on
Monday that it would decide whether President George W. Bush
has the power to create military tribunals to put Guantanamo
prisoners on trial for war crimes, an important test of the
administration’s policy in the war on terrorism.
The justices agreed to review a U.S. appeals court ruling
that Salim Ahmed Hamdan, a Yemeni accused of being Osama bin
Laden’s bodyguard and driver, could be tried by a military
The high court will hear arguments in the case in March or
April, with a decision expected by June.
It will be the first time the court will decide a case
involving the war on terrorism since June 2004 when it dealt
the Bush administration a stinging defeat by ruling that
Guantanamo prisoners could bring challenges in U.S. courts and
Americans held here as enemy combatants could contest their
The July 15 ruling by the appeals court was made by a
three-judge panel that included Judge John Roberts, who has
since been confirmed as the Supreme Court’s chief justice.
Roberts said in the high court’s brief order that he did
not take part in considering Hamdan’s appeal to the Supreme
Court. Roberts has said he would not take part on the Supreme
Court in any matter in which he had participated while on the
The military tribunals, formally called military
commissions, were authorized by Bush after the September 11,
There are about 500 suspected al Qaeda and Taliban
prisoners at the U.S. military base at Guantanamo Bay in Cuba.
Charges have been referred to a commission for four
individuals, including Hamdan.
Hamdan, an accused al Qaeda member, has been charged with
conspiracy to commit attacks on civilians, murder, destruction
of property and terrorism. He is also accused of being bin
Laden’s personal driver in Afghanistan between 1996 and
Human rights groups and some military lawyers have
criticized the tribunals as fundamentally unfair but the Bush
administration has defended them as lawful and argued that the
Geneva Conventions do not apply to Hamdan and others captured
in its war on terrorism.
Hamdan’s tribunal, the first for any of the Guantanamo
prisoners and the first war crimes trial conducted by the
United States since the aftermath of World War Two, was halted
about a year ago by a federal judge who declared the procedures
U.S. District Judge James Robertson ruled the trial could
not proceed until a decision was made on whether Hamdan was a
prisoner of war under the Geneva Conventions and until the
rules are changed so he could see the evidence against him and
be present at all proceedings.
The appeals court disagreed, and attorneys for Hamdan
appealed to the Supreme Court.
“The court of appeals held that the president has the power
to decide how a detainee is classified, how he is treated, what
criminal process he will face, what rights he will have, who
will judge him, how he will be judged, upon what crimes he will
be sentenced and how the sentence will be carried out,” they
“No decision, by any court, in the wake of the September
11, 2001, attacks has gone this far,” the attorneys said.
They urged the Supreme Court to consider the challenge now,
rather than waiting until after the trial was conducted and the
appeals exhausted — a process that could take years.
Bush administration lawyers urged the Supreme Court to
reject the appeal. They said the courts should avoid
interfering with military proceedings and that Hamdan’s
attorneys could raise any issues after the trial.
With Roberts not taking part in the case, the high court
could deadlock by a 4-4 vote, which would affirm the appeals
court ruling against Hamdan.
With arguments in the case expected in March or April,
retiring Justice Sandra Day O’Connor could depart before then.
A Senate confirmation vote on Judge Samuel Alito, who is Bush’s
choice to replace O’Connor, is planned in January.