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Court hears challenge to tribunals

Scalia stays on case despite public remarks

From Bill Mears
CNN

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

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Guantanamo Bay Naval Base (Cuba)

WASHINGTON (CNN) -- The Supreme Court heard arguments Tuesday in what could prove a landmark case on the president's power in a wartime setting.

Lawyers for the Bush administration sought to justify using executive authority to create special military tribunals for suspected foreign terrorists held outside the United States.

Several justices questioned whether the government had properly charged an accused personal assistant to Osama bin Laden, one of 10 men facing military prosecution.

Ahmed Salim Hamdan, a Yemeni native captured in Afghanistan in 2001, shortly after the 9/11 attacks, is accused of conspiracy, which his lawyers say is not an internationally approved charge.

Hamdan's lawyers argue that President Bush exceeded his authority by setting up military commissions that don't give terrorist suspects full protection of military law. (Watch Hamdan's lawyer state his case -- 1:56)

The issues before the high court are three-fold: whether the planned tribunals are a proper exercise of presidential authority; whether detainees facing prosecution have the right to challenge the procedures of those tribunals and their overall detention; and whether the Supreme Court has the jurisdiction to hear such appeals.

If the government prevails on the last question, it could render the first two moot, thereby dodging larger constitutional questions over Bush's claim of authority.

Sharp questions for U.S. lawyer

Several justices sharply questioned Solicitor General Paul Clement, the administration's lawyer, about legal protections for defendants at the U.S. Navy base in Guantanamo Bay, Cuba, where about 490 suspected terrorists are detained.

Justice Anthony Kennedy, a possible swing vote, asked Clement why the government was so adamant about not letting the courts hear some detainee appeals.

"If a group of people decides they're going to try somebody, we (the courts) wait until the group of people finishes the trial before we determine the authority of a tribunal to hold and to try?" he asked Clement.

"This isn't a group of people, this is the president invoking an authority that he's exercised in virtually every war that we've had," replied Clement. He argued that the Guantanamo detainees are "enemy combatants," not prisoners of war in the traditional sense, because terrorists do not fight on behalf of a country or recognized army.

Justice Stephen Breyer worried aloud whether Congress could deprive courts of their authority to hear appeals over the continued detention of terrorist suspects, called habeas corpus challenges. "These are terrifically difficult constitutional questions," he said.

Late last year, Congress passed and President Bush signed the Detainee Treatment Act, which limited court intervention over the detainee issue.

A contradiction?

Justice David Souter repeatedly and forcefully questioned Clement over that point. "Are you leaning toward the position that Congress can suspend the writ of habeas corpus? Is that what you're really saying?" he asked, shaking his head.

Souter and Kennedy also wondered whether the administration was contradicting itself.

"You say the president is operating under the rules of war recognized by Congress," said Souter, "but for purposes of claim to status and hence the procedural rights that go with that status, you're saying the laws of war don't apply. And I don't see how you can have it both ways."

Justice John Paul Stevens asked whether the president could then round up U.S. citizens suspected in the "war on terror" and hold military tribunals in the United States.

Hamdan's attorney, Neal Katyal, told the justices, "If you adopt the government's reading here, they have said they want to try 75 military commission cases or so in the first wave, you will then be left with 75 trials that take place without even the most basic question of what the parameters are that these commissions are operating under."

Katyal said the government's charge of conspiracy against Hamdan is not allowed under international standards of law for prisoners of war, and that earlier federal courts had rejected that standard as well, since it was too broadly defined.

Scalia controversy

The government appeared to have the unequivocal support of Justice Antonin Scalia, who rejected calls by some observers that he recuse himself from the case. (Watch Scalia sound off -- 1:56)

Scalia made comments earlier this month about the detainee issue, saying the prisoners have no constitutional rights to challenge the government's detention policies. Those remarks were a repeat of a dissenting opinion he wrote two years ago in a related issue over detainees. (Full story)

Justice Samuel Alito, who joined the bench in January, heard his first major terrorism case, saying the courts should hold off getting involved until after the tribunals have concluded.

Chief Justice John Roberts did not participate in the arguments. He ruled against the government last year when the case was argued in a lower federal appeals court.

That leaves the possibility of a 4-4 tie, which would mean a victory for the government. But such a ruling would set no precedent, leaving other courts without a guide over how to rule in future appeals.

A ruling is expected by late June.

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