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Accused terrorist files high court appeal

Federal panel including Roberts ruled against Yemeni detainee

From Bill Mears
CNN Washington Bureau

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

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WASHINGTON (CNN) -- Attorneys for an accused Yemeni terrorist who faces a possible U.S. military war crimes tribunal have filed an appeal with the U.S. Supreme Court.

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.

The U.S. Circuit Court of Appeals for the District of Columbia, which included high court nominee John Roberts, last month rejected Salim Ahmed Hamdan's challenge to the tribunal's procedures against terror suspects.

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

The tribunals have been on hold pending the outcome of Hamdan's high court appeal.

The Supreme Court could refuse to intervene at this stage, or take the case and hold oral arguments, likely early next year. A ruling would come before July 2006.

Hamdan's lawyers -- including Georgetown law professor Neal Katyal and Lt. Cmdr. Charles Swift -- filed the appeal to the high court Monday. In it, they warned the justices about the dangers of ignoring Hamdan's case.

"If 'military' commissions are worth conducting, they are worth conducting lawfully and being perceived as so conducted," according to the written brief.

"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 lawyers wrote.

The government's written response to Hamdan's appeal is due in a few weeks.

Hamdan, a 34-year-old native of Yemen, was allegedly al Qaeda leader Osama bin Laden's personal driver and bodyguard.

He was captured by the U.S. military and is being held on foreign soil, along with hundreds of other accused terrorists and fighters, at the U.S. Naval Station in Guantanamo Bay, Cuba.

Bush declared Hamdan an "enemy combatant," a status that makes him ineligible for protections afforded ordinary prisoners of war by the Geneva Conventions.

Hamdan was charged with various conspiracy counts related to terrorism and is facing a military tribunal.

Preliminary trial proceedings began last year against Hamdan and others, including Australian David Hicks. (Full story)

But a federal judge in Washington last November ruled for Hamdan on a key point, halting the proceedings.

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 was determined to be a POW, he should be tried in a federal civilian court rather than military court.

But in July, Roberts and two others on a three-judge panel of the appeals court in Washington 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.

Defense Secretary Donald Rumsfeld said at the time that the ruling "vindicates the president's determination to treat suspected terrorists ... humanely but not to grant them the protections of the Geneva Conventions as a matter of right."

He said the military proceedings "will resume as soon as possible." The trials of Hamdan and Hicks are expected to be the first to begin again.

Roberts, who faces Senate confirmation hearings next month for the seat being vacated by Justice Sandra Day O'Connor, is expected to recuse himself from hearing Hamdan's Supreme Court appeal.

If the case is accepted for review, that could lead to a 4-4 split by the justices, which would mean a loss for Hamdan.

About 60 of the 550 detainees at Guantanamo Bay have asked for a federal court hearing on their status.

The Supreme Court has previously ruled detainees had a right to challenge their detention before a non-military federal court, and allowed the president to order foreign detainees held under some limited circumstances. (Full story)

The case is Hamdan v. Rumsfeld.

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