By Carol Rosenberg,The Miami Herald

MIAMI – A federal appeals court handed the Bush administration a key victory Friday in its war-against-terror strategy, ruling that the Pentagon could put Osama bin Laden’s Yemeni driver on trial for war crimes at Guantanamo Bay, Cuba.

A three-judge panel for the U.S. Court of Appeals for the District of Columbia Circuit unanimously upheld President Bush’s war powers to create a Military Commission to try Salim Ahmed Hamdan, 35, of Yemen.

Moreover, Judge A. Raymond Randolph wrote in a 22-page decision that, as chief executive and commander in chief, Bush could deny terrorism captives prisoner-of-war status as outlined by the Geneva Conventions.

The decision was the latest chapter in the three-year-old legal struggle over presidential powers to detain and sometimes put on trial so-called enemy combatants in the aftermath of the Sept. 11, 2001, attacks.

Attorney General Alberto Gonzales said the court validated a Bush administration distinction “between terrorists and those who legitimately wage war.”

Gonzalez added that the president’s power to “try enemy combatants is a vital part of the global war on terror.”

Hamdan’s lawyers vowed to appeal. Both sides have said they expect the issue to ultimately reach the U.S. Supreme Court.

The full 12-member Appeals Court could hear the case first.

It was unclear, however, whether the Defense Department would reconvene its so-called Military Commissions in the interim.

Retired Maj. Gen. John Altenburg Jr., commander of the process, froze all Guantanamo commissions in November – after a federal judge found the process unconstitutional. Altenburg now can order the three-colonel commission to meet – or can wait for the appeal by Hamdan’s lawyers.

The Yemeni captive, who has a fourth-grade education, worked as a driver for the al-Qaida mastermind from 1996 until his capture in 2001. But he denies joining al-Qaida.

Hamdan’s defense team protested Friday’s decision, saying it “gives the president the raw authority to expand military tribunals without limit, threatening the system of international law and armed conflict worldwide.”

“Today’s ruling places absolute trust in the president, unchecked by the Constitution, statutes of Congress and long-standing treaties ratified by the Senate,” said Navy Lt. Cmdr. Charles Swift and co-counsel Neal Katyal, a Georgetown University professor.

At issue is the Bush administration’s decision to draw up a new formula for Military Commissions that borrows from both World War I and World War II experiences.

The Guantanamo court is comprised of colonels – mostly laymen, not lawyers – whose roles are both as judge and jury. They are confronted with a new category of crime, terrorism, and may use classified information that the captive cannot answer, because he cannot see.

The three-judge federal appeals panel consisted of Randolph, who was appointed by Bush’s father; Stephen F. Williams, a Reagan appointee, and John G. Roberts, who was appointed by the present President Bush and whose name is often mentioned as a conservative suitable for the Supreme Court.

Randolph also wrote the appeals court decision that sided with the Bush administration’s position that Guantanamo detainees had no habeas corpus rights – a ruling that the Supreme Court overturned last summer when it said that enemy combatants can appeal their detention in civilian courts.

Friday’s decision overruled U.S. District Court Judge James Robertson, a Navy veteran who was appointed by President Clinton. He ridiculed Bush’s war court as providing fewer protections than the Pentagon’s own Uniform Code of Military Justice and ruled that the president cannot unilaterally create commissions or confer a blanket category of enemy combatants on captives.

The appeals court replied that, even if Congress has not formally declared war, it has granted the president power to craft a military commission.

(EDITORS: STORY CAN END HERE)

In a curious twist, the court cited a 2001 District Court decision that upheld a 1999 Clinton administration decision to designate an Iranian exile militia movement, the People’s Mojahedin, as a terrorist organization.

The group had sued the State Department and former Secretary of State Madeleine Albright, arguing in part that it could not adequately challenge the designation because classified information was used in the process.

The panel also said that the Supreme Court has not decided whether the United States is bound to give Guantanamo captives any protections under the Geneva Conventions – but only narrowly decided last summer that they can challenge their captivity in civilian courts.

The Pentagon alleges that Hamdan was a member of al-Qaida who worked as bin Laden’s bodyguard and also personally trained at an al-Qaida-sponsored al-Farouq military training camp.

His lawyers say Hamdan worked mostly on bin Laden’s Kandahar farm for a $200-a-month salary because he needed the work – not out of ideological commitment.

Copy the Story Link