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marinemom
11-24-04, 05:11 AM
Justices Asked to Rule on Detainees
Yemeni's Attorneys Want to Bypass Federal Appeals Court

By Carol D. Leonnig
Washington Post Staff Writer
Wednesday, November 24, 2004

Attorneys for a detainee at the U.S. military prison at Guantanamo Bay, Cuba, have asked the Supreme Court for immediate intervention to decide the legality of the "military commissions" set up by the Pentagon to prosecute alleged al Qaeda and Taliban fighters.

Lawyers representing a Yemeni man accused of serving as Osama bin Laden's bodyguard argued that they should be allowed to skip appeals in his case and have the Supreme Court make a decision soon. Victorious in federal court earlier this month, attorneys for Salim Ahmed Hamdan said that waiting for the government to appeal that decision would leave the Bush administration's plans for trials suspended and would prolong detainees' captivity.

Some of the detainees, including Hamdan, have been held at the U.S. military prison for nearly three years.

In the highly unusual request, filed late Monday night, attorneys for Hamdan said the Supreme Court is the proper panel to settle the "gravity of the questions presented" about a president's broad powers to wage war and punish terrorists. They noted, and the government has acknowledged, that the case will undoubtedly be appealed to the Supreme Court eventually.

The president has asserted that he has the right to try anyone who is not an American citizen "with rules he alone decides," Navy Lt. Cmdr. Charles Swift, an attorney for Hamdan, said yesterday. "It's a fairly ambitious statement of presidential power . . . and that's an appropriate question for the Supreme Court to rule on."

Pentagon and Justice Department lawyers declined to comment yesterday.

A federal judge ruled Nov. 8 that the special military trials, revived by the Pentagon after the Sept. 11, 2001, terrorist attacks, would not provide detainees fair legal treatment or an ability to challenge the accusations against them.

U.S. District Judge James Robertson said the detainees first should have been afforded hearings on whether they are prisoners of war. Until the government provides those hearings, Robertson ruled, the detainees must be given the prisoner-of-war protections afforded by the Geneva Conventions.

Hamdan was the first detainee scheduled to be tried by a military commission, but his trial was postponed indefinitely after Robertson's ruling.

The Supreme Court is rarely asked, and even more rarely agrees, to hear arguments in a case before it has been reviewed by a federal appeals court. Most recently, it agreed this summer to hear a case so it could resolve nationwide confusion caused by a June ruling on the sentencing of criminals.

In the past, the court has agreed to skip appellate reviews of cases it said were "momentous" -- including those involving the Watergate tapes, President Harry S. Truman's seizure of steel mills under his powers to wage war, and Nazi saboteurs during World War II. Hamdan's attorneys contended that this is that kind of urgent case.

"Such a delay would not only leave petitioner detained at Guantanamo for an additional, fourth, year, it would leave the military commission process in limbo, cast a significant cloud over the government's compliance with its international obligations and promote continuing uncertainty in the courts in other cases," the lawyers wrote.

The government filed for an expedited appeal with the U.S. Court of Appeals for the District of Columbia Circuit, arguing also that the case was momentous and needs to be resolved quickly. A panel of the appellate court agreed last week and set a schedule for a three-judge panel to hear the case early next year. But even on that speedy track, the process would take at least a year, officials said.

Douglas W. Kmiec, a Pepperdine University law professor, predicted that the high court will await the appellate court's ruling before deciding whether to take up the case. "This is a strategy designed to attract headlines, not the court's early review," he said.