WASHINGTON—In a key test of President Bush's war powers, the Supreme Court grappled Tuesday with whether the Pentagon's plan to try Osama bin Laden's ex-driver before a special military commission violates international law and the U.S. Constitution.
Neal Katyal, the attorney for Salim Hamdan, argued that the Pentagon had concocted a charge—conspiracy—that isn't a war crime, had failed to grant Hamdan certain Geneva Conventions rights, such as prisoner-of-war status, and fell short of standards that Congress has set for how the United States must conduct either military or civilian justice.
"This is a military commission that is literally unbounded by the laws, Constitution and treaties of the United States," he told the court.
Solicitor General Paul Clement argued that Congress had given the president the power to craft the commission when it authorized the use of force after the Sept. 11, 2001, terrorist attacks. He called such commissions "part and parcel of the (presidential) war power for 200 years."
Chief Justice John G. Roberts' seat was vacant for the sharp, 90-minute round of questioning and arguments; as an appeals court judge, Roberts had sided with the White House on the issue. His absence creates the possibility of a 4-4 deadlock when the court decides this summer whether to let Hamdan's war-crimes trial go forward, in which case the appeals court ruling would stand.
Hamdan is one of 10 captives at the U.S. naval base at Guantanamo Bay, Cuba, who face trial by military commission. Pentagon officials have said 75 at most of the nearly 500 suspected terrorists at Guantanamo might be tried before the panels, which are composed of military officers whose identities are being kept secret.
Several justices, notably freshman Samuel Alito, asked why the Pentagon shouldn't proceed with its trials, and perhaps amend its conspiracy charge, then let civilian courts consider the case if Hamdan is convicted, as at a typical U.S. criminal trial.
"The commission is operating in totally uncharted waters; it's charging a violation in a stateless, territorial-less conflict, something which the full laws of war have never applied," replied Katyal, a Georgetown University Law Center professor who was a clerk for Justice Stephen Breyer a decade ago.
Uniformed American military officers were scattered throughout the gallery, among them lawyers from all four services—Marines, Air Force, Army and Navy—who in effect mutinied against their commander in chief by alleging that Bush's commissions strip foreign captives of fundamental rights.
"If you believe that these are full and fair trials, you believe that the Bill of Rights is irrelevant," Hamdan's Pentagon-appointed defense attorney, Navy Lt. Cmdr. Charles Swift, declared on the front steps of the marble-columned courthouse.
Retired military officers, civil liberties lawyers, former diplomats and international law experts all filed briefs on behalf of the 36-year-old Yemeni with a fourth-grade education, arguing that the Bush administration went too far by creating a commission outside an explicit framework set out by Congress and ignoring many of the protections of U.S. military justice, which has a provision for tribunals.
The justices seemed especially intrigued with the nature of the crime alleged, conspiring with al-Qaida. At least four justices asked questions related to the charge.
Katyal called the conspiracy charge so broad and unfocused that "a little old lady in Switzerland who donates money to al-Qaida, and that turns out to be a front for terrorist acts ... might be swept up within this broad definition. That's why international law has so rejected the concept of conspiracy."
Clement argued that the court shouldn't even be considering the case because Bush had signed a law Dec. 30 that effectively stripped Guantanamo captives of pre-commission habeas corpus challenge.
Some justices focused on whether Congress intentionally or inadvertently suspended the Writ of Habeas Corpus for captives in Cuba; Clement argued that Congress' intent was irrelevant, an argument that seemed to find favor from Justice Antonin Scalia, for whom Clement once clerked.
Hamdan claims through his lawyers that he never joined al-Qaida, wasn't a warrior and was merely a civilian driver who earned $200 a month driving a pickup from bin Laden's private farm. His lawyer said Afghan militiamen captured him along the Afghan border in 2001, after he evacuated his pregnant wife and 2-year-old daughter to Pakistan, and turned him over to U.S. troops who sent him to Guantanamo.
Breyer asked what would stop the president from "picking up an alien" and holding the same type of trial in Toledo, Ohio.
Justice Anthony Kennedy questioned whether Hamdan wasn't "uniquely vulnerable," and therefore not entitled to certain prisoner-of-war considerations under the Geneva Conventions.
"I don't think he's protected by the Geneva Conventions, but that's largely because he chose not to comply with the basic laws of war," Clement said. "Nobody has a claim here that they were part of the uniformed al-Qaida division that complied with all of the laws of war such that they are entitled to POW status."
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(Rosenberg reports for The Miami Herald.)
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(c) 2006, Knight Ridder/Tribune Information Services.
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