WASHINGTON (AP) – The Supreme Court is giving no free passes to the commander in chief.

Pressed by the Bush administration to stay out of a wartime powers case, the court jumped in anyway. The justices will decide if the president overstepped his authority by ordering military tribunals for terror suspects held at Guantanamo Bay, Cuba, resurrecting a type of trial last used during World War II.

The case the justices will hear next spring involves Osama bin Laden’s former driver.

The court’s intervention is troubling news for the White House, which has been battered by criticism of its treatment of detainees and was rebuked by the high court last year for holding enemy combatants in legal limbo.

“To have the court step in and say we want to review the president’s decisions as he’s acting as commander in chief, that’s significant,” said Scott Silliman, a Duke University law professor and former Air Force attorney.

New Chief Justice John Roberts took himself out of the case because as an appeals court judge he held that the government could put Salim Ahmed Hamdan on trial before a military commission. If Bush nominee Samuel Alito is confirmed, he could be a pivotal figure when the case is argued.

Announcement of the court’s move came shortly after Bush, asked about reports of secret U.S. prisons in Eastern Europe for terrorism suspects, declared anew that his administration does not torture anyone.

“There’s an enemy that lurks and plots and plans and wants to hurt America again,” Bush said during a news conference in Panama City with President Martin Torrijos. “So you bet we will aggressively pursue them but we will do so under the law.”

“Anything we do to that end in this effort, any activity we conduct, is within the law. We do not torture,” he said.

Separately, the Pentagon said Monday that it had charged five more terror suspects detained at Guantanamo Bay with offenses and that they would face trial by a military tribunal. That brings to nine the number of detainees there who have been charged with criminal offenses. There are about 500 detainees there in all.

Hamdan, a Yemeni who was captured in Afghanistan in November 2001, denies conspiring to engage in acts of terrorism and denies he was a member of al-Qaida. He has been charged with conspiracy to commit war crimes, murder and terrorism.

The Bush administration argued that national security was at stake. “The military proceedings involve enforcement of the laws of war against an enemy force targeting civilians for mass death,” Solicitor General Paul Clement wrote in a filing.

Robert Turner, a law professor specializing in national security at the University of Virginia, said that however the case comes out it will be good for the government.

“If we’re going to win the war on terrorism, we have to maintain the moral high ground. It’s important to have the highest court in the land pass judgment on it,” he said.

In 2004 the justices took up early cases from the war on terrorism. Sandra Day O’Connor, who is retiring, wrote in one, “A state of war is not a blank check for the president when it comes to the rights of the nation’s citizens.”

Arguments in the Hamdan case will be scheduled in time for O’Connor’s successor to take part. Confirmation hearings are planned for January for Alito, who often has been deferential to government in his appeals court rulings.

Hamdan is among about 500 foreigners who were designated “enemy combatants” and imprisoned at the base in Cuba.

Guantanamo Bay has become a flash point for criticism of America overseas and at home. Initially, the Bush administration refused to let the men see attorneys or challenge their imprisonment in courts. The Supreme Court in 2004 said U.S. courts were open to filings from the men, although justices may be called on to clarify the legal rights of the detainees in a separate appeal.

“Guantanamo, in the eyes of the rest of the world, is a blot on American justice. Around the world, this will be as important if not more so than it is in the United States,” said Stephen Saltzburg, a law professor at George Washington University who filed a brief urging the court to take Hamdan’s case.

The case brings a new issue to the court – the rights of foreigners who have been charged with war crimes and face a trial before military officers with possible death sentences.

Hamdan, like many other Guantanamo inmates, began a hunger strike over the summer.

A district judge last November sided with Hamdan. But the administration won an appeal before a panel of the United States Court of Appeals for the District of Columbia Circuit, including Roberts.

The administration argued that it was unnecessary for the court to hear Hamdan’s case because the Pentagon had relaxed the rules for tribunals, enabling more information to be shared with defendants, and because the government had changed the structure of the panels.

Hamdan’s lawyer, Georgetown University professor Neal Katyal, said in a filing that “it is a contrived system subject to change at the whim of the president.”

“With constantly shifting terms and conditions, the commissions resemble an automobile dealership instead of a legal tribunal dispensing American justice and protecting human dignity,” he wrote.

Hamdan’s attorneys may ask Roberts to participate in the case to avoid a 4-4 tie.

The case is Hamdan v. Rumsfeld, 05-184.



On the Net:

Military tribunals: http://www.defenselink.mil/news/commissions.html

Supreme Court: http://www.supremecourtus.gov/

AP-ES-11-07-05 1811EST


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