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U.S.: Dismiss bin Laden driver's appeal

Terror suspect claims military tribunal is unconstitutional

From Kevin Bohn
CNN

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

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WASHINGTON (CNN) -- The Justice Department on Thursday asked the Supreme Court to dismiss an appeal by a terror suspect being held at Guantanamo Bay.

In court papers, the government argued there was no legal basis for the Supreme Court to hear a detainee's appeal that his pending trial before a military tribunal is unconstitutional.

In November, the justices agreed to hear the appeal by Salim Ahmed Hamdan, who was a driver for al Qaeda leader Osama bin Laden.

In a brief filed Thursday, Solicitor General Paul Clement argued a new law prohibits federal courts from hearing cases regarding Guantanamo detainees until the military tribunals have ruled.

Hamdan's case has not reached that stage and his tribunal is on hold while the Supreme Court case is active. But Hamdan and his lawyers argue they have a right to contest his detention in U.S. courts now.

Some legal experts disagree with the government's view that the Detainee Treatment Act, passed in late December, is retroactive and allows for the dismissal of pending cases involving Guantanamo detainees, including Hamdan.

The Justice Department argues in its brief: "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 or vacate with instructions for the lower courts to dismiss."

Neal Katyal, a lawyer representing Hamdan, had no comment. But a group that filed a friend-of-the-court brief in support of Hamdan took immediate issue with the government's filing.

"The government is just wrong. It's not retroactive," said Bill Goodman, legal director for the Center for Constitutional Rights. "And the Supreme Court granted cert," meaning it had accepted the case.

The center is representing many detainees in various ongoing legal cases.

"They (the government) do not want a public airing of the fact the government is indefinitely holding people, torturing people," Goodman said.

If the Supreme Court doesn't agree to the Justice Department request, the justices are expected to hear the case in March.

Separately, citing the passage of the detainee act, the Justice Department earlier this month asked U.S. district judges to dismiss about 200 cases involving about 300 Guantanamo detainees who are contesting their detention, arguing the lawsuits are now invalid.

Lawyers for the prisoners disagree and vow to fight the dismissal requests.

CNN's Carol Cratty contributed to this report.

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