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 tribunal.
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 detention.
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 appeals court.
The military tribunals, formally called military commissions, were authorized by Bush after the September 11, 2001, attacks.
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 November 2001
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 unlawful.
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 said.
“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.
