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Bin Laden driver challenges tribunals

From Bill Mears
CNN

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

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Supreme Court
Guantanamo Bay Naval Base (Cuba)

WASHINGTON (CNN) -- Salim Ahmed Hamdan denies being a terrorist, and denies fighting against coalition forces in Afghanistan when he was captured there two months after the September 11, 2001, attacks on New York and Washington.

U.S. authorities think otherwise. They want to try the Yemeni native in a military tribunal at the Navy's prison camp at Guantanamo Bay, Cuba, where he has been held for over three years.

The legal tug-of-war goes before the U.S. Supreme Court Tuesday in what could be the most important test of the government's power to detain and prosecute suspected terrorists captured and held outside the United States by the American military.

Hamdan's attorneys say the tribunals are unconstitutional, but the Bush administration asserts executive authority to try "enemy combatants" captured in the war on terror. Hamdan has admitted being a personal assistant, bodyguard and driver to al Qaeda leader Osama bin Laden, officials say.

The lawyers say they have no plans to ask Justice Antonin Scalia to drop out of the case, despite the disclosure of comments the jurist made about the overall detainee issue. (Full story)

Other groups representing hundreds of other detainees have asked Scalia to recuse himself.

About 500 prisoners are being detained at Guantanamo Bay, according to recent estimates. Most were captured in Afghanistan, where U.S. troops are still battling remnants of the Taliban, the Islamic militia that ruled Afghanistan between 1996 and 2001 and harbored al Qaeda.

A Justice Department attorney acknowledged last week during a hearing before a U.S. appeals court that about 200 lawsuits have been filed in federal courts on behalf of more than 300 detainees protesting their continued incarceration.

This case has been sitting on the court's docket since last autumn, accompanied by a series of intriguing twists.

The government in recent weeks had urged the court -- unsuccessfully -- to drop the case prior to oral arguments, saying a law passed by Congress and signed by the president in December prevented federal courts from intervening in the tribunals before they had begun.

"Because the Detainee Treatment Act in plain terms removes the court's jurisdiction to hear this action, the court should dismiss this case for want of jurisdiction to hear this action," the Justice Department argued.

The justices will be confronted with the jurisdiction issue in oral arguments, and legal experts say it is possible, but unlikely, the court could agree with the government and dismiss the case without issuing a ruling.

Civil rights groups back appeal

Hamdan's lawyers, along with a number of civil rights groups, have questioned whether the law was retroactive and allows for the dismissal of pending cases involving Guantanamo detainees, including Hamdan's.

The attorneys, including Georgetown law professor Neal Katyal and Lt. Cmdr. Charles Swift, had warned the justices about the dangers of ignoring basic legal protections for the prisoners.

"Once you abandon that framework and say the answers are more important than the treatment of any particular individual, then you go into a gray area and start to move on that scale," Swift told CNN in an interview two years ago.

"And once you start sliding down that slope, it's very hard to stop."

The Supreme Court challenge comes as a similar appeal is working on parallel tracks in a Washington-based federal appeals court. A three-judge panel heard arguments last week on whether detainees must remain in Guantanamo, even though no charges would be filed against them.

Both courts must decide the jurisdiction issue, and it is unclear who will rule first.

The government has asserted broad executive authority in dealing with suspected terrorists and others being held overseas by the military. Officials say the detentions are open-ended because they need to interrogate the men to uncover knowledge of past and future terror operations, and to ensure they would not re-enter the "battlefield" upon release.

Bush declared Hamdan, born in 1970, an "enemy combatant," and asserted he was not covered by the Geneva Conventions, which protect regular prisoners of war. Hamdan was charged with various conspiracy counts related to terrorism.

Two years ago, the Supreme Court ruled that while the government had the right to hold detainees at Guantanamo, the prisoners could also challenge their status in federal courts. The justices at the time did not give specifics on how that should be done, or address the tribunal issue.

The Pentagon last week said it is considering a written order preventing any evidence used at military trial that was obtained through torture. Officials said such an order would clarify an unwritten policy barring such evidence. Some prisoners and civil rights advocates have alleged some interrogation methods relied on torture by the military.

Complicating matters is that Chief Justice John Roberts will not participate in oral arguments or decide the case, since he had voted to reject Hamdan's appeals last year when Roberts was still a federal appeals court judge.

That could leave the possibility of a 4-4 tie among the remaining justices -- which would mean victory for the government, but provide no precedent for lower courts to use in similar cases that are pending.

A ruling is expected by the end of June.

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