Justices signal opposition to plan for military tribunals

WASHINGTON – In a case that could set the stage for a landmark ruling, Supreme Court justices appeared troubled Tuesday by President Bush’s plans to hold war-crimes trials for foreigners held at Guantanamo Bay, Cuba.

And several seemed outraged by the government’s claim that a new law had stripped the high court of authority to hear a case brought by Salim Ahmed Hamdan, a Yemeni who once worked as a driver for Osama bin Laden.

Hamdan has spent nearly four years in the U.S. prison at Guantanamo, and the Supreme Court has been asked to decide whether he can be put on trial with fewer legal protections before a type of military tribunal last used in the World War II era.

The U.S. prison has been a flash point for international criticism because hundreds of people suspected of ties to al-Qaida and the Taliban have been swept up by the U.S. military and secretly shipped there since 2002.

“The use of military commissions to try enemy combatants has been part and parcel of the war power for 200 years,” Solicitor General Paul Clement told justices.

Hamdan’s lawyer, Neal Katyal, told justices the Bush administration is seeking a “blank check” to do what it wants with foreigners held at Guantanamo Bay.

Justice Stephen Breyer said lawyers for Hamdan, who faces a single conspiracy count, argued there is no emergency to justify the special trial.

“If the president can do this, well, then he can set up commissions to go to Toledo, and in Toledo pick up an alien and not have any trial at all except before that special commission,” Breyer said.

The outcome of the case will likely turn on moderate Justice Anthony Kennedy, who questioned Clement several times about the legal safeguards for the trials. Kennedy said that historically, prisoners have been able to challenge their detentions in court.

The Bush administration has tried to scuttle the case on grounds that a new law stripped the justices’ authority to consider it. The law Congress passed late last year bars Guantanamo prisoners from filing petitions to fight their detentions, and the administration claims this law retroactively voided hundreds of lawsuits.

Justice David Souter said it would be “stupendously significant” for Congress to retroactively close courts to constitutional challenges.

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