The Supreme Court will hear a challenge to Bush administration plans for military tribunals to try foreign detainees.

Terror Trials to Get Review
The Supreme Court will hear a challenge to Bush administration plans for military tribunals to try foreign detainees. Chief justice recuses himself.
By David G. Savage
LA Times Staff Writer

November 8, 2005

WASHINGTON — The Supreme Court announced Monday that it would hear a challenge to the Bush administration's plan to try accused foreign terrorists in special military courts, setting the stage for a ruling on whether the Geneva Convention trumps the president in the war on terrorism.

The case, to be heard in the spring, will set the rules for the first war-crimes trials for foreign prisoners since World War II.

At issue is whether accused terrorists are entitled to the legal rules that are standard in a criminal trial or a court-martial of United States military personnel.

The Geneva Convention says prisoners who are captured during war and charged with crimes are entitled to be tried under the standard laws of the host country.

For instance, does the defendant have the right to participate in his trial, to see all the evidence against him and to confront his accusers? The government contends that in some cases, he may not, since some of the material being discussed may be classified.

The Bush administration said in November 2001 that foreign fighters captured in the U.S.-declared war on terrorism were not entitled to the Geneva Convention's protections for prisoners of war because terrorist groups such as Al Qaeda were not government entities or signatories to the 1949 treaty.

The Defense Department also has refused to account for all the foreigners being held by the United States or to allow international inspectors, such as representatives from the International Committee of the Red Cross, to check on the conditions of every terrorism suspect in U.S. custody.

Although the Constitution does give Congress the power to "make rules concerning captures on land and water," lawmakers have not passed any rules on the handling of prisoners captured in the war on terrorism.

Last year, the Supreme Court took a first step toward reining in the White House over its handling of foreign detainees held at the U.S. military prison at Guantanamo Bay, Cuba. The administration had maintained that these men were outside the jurisdiction of U.S. courts because they were outside U.S. territory.

Disagreeing, the Supreme Court said the Constitution gave these prisoners — and indeed all persons held in U.S. custody — a right to challenge their detentions in court. Some of the men held at Guantanamo Bay had described themselves as innocent victims of warlords in Afghanistan, and said they should have a chance to prove their innocence.

But the Supreme Court's ruling in their favor stopped short of deciding the precise legal process that would resolve these complaints. It remains unclear today.

The new case, by contrast, will decide the rules for the handful of prisoners who are being charged with war crimes or terrorist offenses.

Salim Ahmed Hamdan was a driver and bodyguard for Osama bin Laden, the Al Qaeda leader and mastermind of the Sept. 11, 2001, attacks. The government accused Hamdan, a Yemeni, of aiding Al Qaeda by delivering weapons and munitions. He was charged with conspiracy to carry out terrorist crimes against civilians.

Hamdan's lawyers acknowledge that he was a driver for Bin Laden, but they say he wanted to flee Afghanistan and did not willingly conspire with Al Qaeda. He has been held at Guantanamo Bay since June 2002.

In setting the military tribunal rules, the Bush administration said defendants would not have the right to appeal to the U.S. courts. That policy was criticized by civil libertarians and some military lawyers. They feared that the specter of closed military trials would come back to haunt U.S. soldiers in the future.

Last year, a federal judge in Washington blocked the administration from proceeding with its trial of Hamdan. U.S. District Judge James Robertson ruled that the procedures did not comport with the standards set by the Geneva Convention.

Bush's lawyers appealed, arguing that the international treaty did not give the detainees a right to challenge the government in court. They won a 3-0 ruling in the U.S. Circuit Court of Appeals for the District of Columbia in July.

The appellate judges — including John G. Roberts Jr., who was sworn in last month as chief justice of the United States — said Congress had given the president all the authority he needed when it passed the resolution authorizing Bush to use "all necessary and appropriate force" to fight Al Qaeda.

In August, Hamdan's lawyers appealed to the Supreme Court. They noted that the Constitution says all treaties made and ratified "shall be the supreme law of the land" and carry the force of law. The White House, they maintained, therefore was not free to ignore the standards set by the Geneva Convention.

The justices said Monday that they would hear the case of Hamdan vs. Rumsfeld probably in March. Roberts will not take part in the decision because he ruled on the case in the appellate court.

Civil libertarians said they were pleased the court would rule on whether the U.S. Constitution and the Geneva Convention apply to the war on terrorism.

"The questions this case presents go to the heart of our constitutional system and, if left unanswered, pose significant threats to our troops," said Deborah Pearlstein, the director of U.S. law and security programs at the advocacy group Human Rights First.

"These are the first military trials of their kind [that] the United States has conducted since World War II," Pearlstein said, "and we're gratified the court has recognized the need to act." A second trial of a Guantanamo detainee will continue as scheduled later this month despite the court's decision to hear the Hamdan case, the Pentagon said Monday.

David Hicks, an Australian who was captured in Afghanistan, allegedly fought with Al Qaeda and is charged with conspiracy to attack civilians, murder, destruction of property and terrorism.

"We are aware of the Supreme Court's decision today in the case of Guantanamo detainee Salim Hamdan," said Air Force Maj. Michael Shavers, a Pentagon spokesman. "We don't expect any changes to our current commissions' procedures or schedule."

In addition, the Pentagon said five more detainees at Guantanamo Bay — two from Saudi Arabia and one each from Algeria, Ethiopia and Canada — would face trials before a military commission on a variety of charges, including murder, terrorism and aiding the enemy. No date was set.

That brings to nine out of about 500 detainees at the facility who have been charged with criminal offenses.

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Times staff writer Richard A. Serrano contributed to this report.