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Judge refuses to delay detainee trial

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  • Salim Hamdan is accused of being Osama bin Laden's bodyguard and driver
  • Judge refused to stop trial of Hamdan before a military commission
  • Hamdan can challenge his detention after trial, judge says
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WASHINGTON (CNN) -- A federal judge refused Thursday to delay the approaching military commission trial of a Yemeni man who served as Osama bin Laden's personal bodyguard and driver.

Defense attorney Joe McMillan argues for the injunction before federal judge James Robertson.

Salim Hamdan will stand trial Monday at Guantanamo Bay, Cuba, U.S. District Judge James Robertson ruled at a hearing in Washington.

Attorneys for Hamdan claimed that the military commission procedures violate Hamdan's constitutional rights and that no rules had been established for such trials.

However, Robertson said it was not the right time for defense attorneys to raise such arguments, which can be done on appeal after the trial is completed. And he said it was not the court's role to continue delaying the proceedings.

Hamdan is charged with providing material support for terrorism and conspiracy. Prosecutors contend that he was a member of al Qaeda from 1996 through 2001 and conspired with the group regarding terrorist attacks.

The government maintains that Hamdan has admitted being a member of al Qaeda and a driver for bin Laden.

His attorneys were attempting to cite a Supreme Court ruling last month that Guantanamo Bay detainees have the right to challenge their detention in American courts, which would be to their advantage in delaying his trial. Robertson refused to grant their motion.

Neal Katyal, a Georgetown University law professor who represented Hamdan at the hearings, said he does not know whether he will appeal Robertson's ruling.

"We knew this was difficult going in," said Joe McMillan, another Hamdan attorney.

Justice Department spokesman Erik Ablin said in a statement that the department was pleased with Robertson's decision.

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"The government looks forward to presenting its case against Mr. Hamdan for the commission," the statement said. "We note that, under the procedures established by Congress in the Military Commissions Act, Mr. Hamdan will receive greater procedural protections than those ever before provided to defendants in military commission trials."

Katyal argued before Robertson, "we don't know what rule book even applies to these trials." He said authorities should "get it right the first time, with basic rules set in place."

Justice Department attorney John O'Quinn argued that it was time for Hamdan's trial to go forward, saying Congress had passed the Military Commissions Act in 2006 -- in a case involving Hamdan -- setting forth guidelines for commission trials.

He won an important victory at the U.S. Supreme Court that year, when the justices struck down a version of the military commissions. The case led to the Military Commissions Act, which imposed greater legal barriers for prisoners held at Guantanamo. In their ruling last month, the sharply divided justices threw out a portion of that law.

Katyal noted that Hamdan has been held for years at Guantanamo. But Robertson pointed out that if he granted the attorneys' motion to delay the trial, it would set off another protracted legal battle.

Robertson said in making his ruling that it applies only to Hamdan's case, not those of other Guantanamo detainees.

Under the Military Commissions Act, those facing military commission trials have a limited right to appeal any conviction, reducing the jurisdiction of federal courts. The suspects must also prove to a three-person panel of military officers that they are not a terrorism risk. But defendants would have access to evidence normally given to a jury, and CIA agents were given more guidance in how far they can go in interrogating prisoners.

In addition to the Hamdan case, in 2004 the justices affirmed the right of prisoners to challenge their detention in federal court. Congress and the Bush administration have sought to restrict such access.

The White House has said it is considering whether to close the Guantanamo prison, suggesting that some of the high-level al Qaeda detainees could be transferred to the federal prison in Leavenworth, Kansas, and a military brig in North Charleston, South Carolina.

Both presumptive presidential nominees, Republican Sen. John McCain and Democratic Sen. Barack Obama, have said they would close Guantanamo Bay.

Americans are split on the issue, according to a 2007 poll by CNN and Opinion Research Corp., with 46 percent supporting its continued operation and 45 percent opposed.

Most of the dozens of pending detainee cases have been handled in the U.S. Court of Appeals in Washington. In February 2007, that court upheld the Military Commissions Act's provision stripping courts of jurisdiction to hear challenges from Guantanamo prisoners, but a three-judge panel of the same D.C. Circuit later expressed concern about why the U.S. military continues to limit attorney access to the Guantanamo men.

About 270 detainees are being held at the U.S. military prison at Guantanamo Bay, according to the Pentagon. They include 14 suspected top al Qaeda figures, among them Khalid Sheikh Mohammad, suspected mastermind of the September 11 terrorist attacks, who was transferred to the facility for trial in 2006.

CNN's Eric Fiegel, Kevin Bohn, Terry Frieden and Bill Mears contributed to this report.

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