Guantanamo tribunals face court scrutiny

WASHINGTON – Osama bin Laden’s former driver is at the heart of a U.S. Supreme Court case this week that could determine whether President George W. Bush has the power to use military tribunals in his war on terrorism.

The case, focusing on the war crimes tribunals for prisoners at the U.S. military base in Guantanamo, Cuba, also will weigh the balance of power between the presidency and the courts.

In 90 minutes of arguments on Tuesday, the session could produce the most significant ruling on presidential war powers since the end of World War Two.

“Reduced to its essence, the government’s argument is that the federal judiciary has no real power to review actions taken by the president in the name of fighting terrorism,” wrote University law professor Neal Katyal, who is defending bin Laden’s former driver-bodyguard, Salim Ahmed Hamdan.

In revisiting Bush’s policies in the war on terrorism for the first time in nearly two years, the Supreme Court also will take up a second important issue on whether Guantanamo prisoners can go to court in the United States to enforce the protections of the Geneva Convention.

The Bush administration says the president has the power to create the military tribunals and the protections of the Geneva Convention do not apply. In the past, the Supreme Court has provided a check on the president’s powers in the war on terrorism.Before the justices can rule on either issue, they must decide a third crucial issue — whether a recent law stripped the court of its jurisdiction over the appeal by a Yemeni accused of being Osama bin Laden’s bodyguard and driver.

The Detainee Treatment Act, signed by Bush on December 30, severely restricts the ability of prisoners at Guantanamo to bring challenges in federal court.

The Bush administration argued the law applied to all existing cases and that the Supreme Court must dismiss Hamdan’s appeal without deciding the key issues.

Hamdan’s attorneys disagreed. They said the U.S. Congress did not intend to strip the court of the power to decide challenges to the lawfulness of the tribunals.