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Bin Laden driver to get high court's ear

Justices to decide if Bin Laden driver faces war crimes trial

Bill Mears
CNN Washington Bureau

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Salim Ahmed Hamdan allegedly was a driver and bodyguard for Osama bin Laden.

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WASHINGTON (CNN) -- An accused terrorist and former driver for Osama bin Laden will get his day before the Supreme Court in a case testing the constitutionality of military tribunals.

The justices without comment Monday accepted the appeal of Salim Ahmed Hamdan, a Yemeni native.

The case could be the most important test so far of the government's power to detain and prosecute suspected terrorists captured and held overseas by the American military.

President Bush set up the special military commissions two months after the September 11, 2001, attacks.

The tribunals have not yet begun, pending the outcome of the high court case.

Responding to the court's action, White House spokesman Scott McClellan said, "We're confident in our position that has already been upheld by the circuit court. The Justice Department will make our case before the court and looks forward to it."

Chief Justice John Roberts did not participate in the decision. He had been an appeals court judge in the federal circuit where the case was originally filed. His continued recusal would open the possibility of a 4-4 split among the other justices.

The case is likely to be heard next February or March, when nominee Samuel Alito could be on the bench. He has been nominated to replace Justice Sandra Day O'Connor.

The decision came as a surprise. The justices had the case under consideration for weeks, signaling to many legal analysts they were prepared to refuse Hamdan's appeal, at least for now.

Hamdan's lawyers, who include Georgetown law professor Neal Katyal and Lt. Cmdr. Charles Swift, had warned the justices about the dangers of ignoring this case.

"If (military) commissions are worth conducting, they are worth conducting lawfully and being perceived as so conducted," they said in a brief filed in August.

"Before embarking on a dangerous experiment to break not only from common law and international law, but also from our traditions of military justice, Americans and the rest of the world should rest assured that these principles will not be abandoned without at least review by the highest court in the land," the brief stated.

The government has asserted broad executive authority in dealing with suspected terrorists and other foreign nationals being held overseas by the military.

U.S. officials say Hamdan has admitted being Bin Laden's personal driver and bodyguard, but has denied being a terrorist. He was captured by the U.S. military and is being held, along with hundreds of other accused terrorists and fighters, at the U.S. Naval Base in Guantanamo Bay, Cuba.

President Bush declared Hamdan an "enemy combatant," and therefore not covered by the Geneva Conventions, protections afforded regular prisoners of war. Hamdan was charged with various conspiracy charges related to terrorism and is facing a military tribunal.

In December, a federal court judge in Washington ruled for Hamdan on a key point, halting preliminary trial proceedings against him.

Judge James Robertson said the government failed to follow proper procedures to determine whether Hamdan was a prisoner of war, which would have entitled him to greater legal rights. Robertson also said if Hamdan, 34, was determined to be a POW, he should be tried in a federal civilian court.

In July, a three-judge panel of the U.S. Court of Appeals for the District of Columbia ruled against Hamdan, saying Congress had authorized the president to set up the special tribunals. The court also said detainees could not appeal based on any violations of international treaties, like the Geneva Conventions.

About 60 of the detainees being held at Guantanamo Bay have asked for a federal court hearing on their status. There are currently about 550 prisoners at the camp.

The Supreme Court has previously ruled detainees have a right to challenge their detention before a federal, non-military court, but allowed the president to hold foreign detainees under some limited circumstances.

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