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Legal challenges mount to Guantánamo tactics

The most prominent case centers on Osama bin Laden's former driver and the military commission that would try him.

By Staff writer of The Christian Science Monitor / December 21, 2004

Six months after losing two landmark US Supreme Court cases, government lawyers are once again on the defensive facing a new round of challenges to Bush administration tactics in the war on terror.

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At issue in a string of federal court cases is to what extent US and international legal protections are available to the 550 suspected enemy combatants being held indefinitely at the Guantanamo Bay Naval Base in Cuba. How the judiciary answers that question could have ramifications far beyond Guantánamo Bay.

Most prominent among the cases is one dealing with an attempt by the US government to place Osama bin Laden's former driver on trial as an alleged war criminal. A federal judge has thrown the case out, but the government is appealing.

Ultimately at stake is a possible redrawing of the constitutional balance between executive, legislative, and judicial authority in times of national crisis.

"All of the questions that are thrown into play by the US detention policies in the war on terror are fundamentally separation of powers issues," says Joseph Margulies, who was part of the legal team that persuaded the Supreme Court to extend US federal court jurisdiction to detainees at Guantánamo in June.

Administration lawyers defend their hardfisted tactics as a necessary exercise of presidential war power in the face of an enemy that they say is plotting mass murder in an American city. The Constitution entrusts the president - not the courts - with the task of protecting the nation from foreign threats, they say.

The current legal challenges are taking place on two tracks. Both were prompted by Supreme Court decisions in June.

More than 50 Guantánamo detainees have filed suit in federal court in Washington, challenging the legal sufficiency of a Pentagon-drafted review system designed to determine each detainee's status as an enemy combatant. In addition, a second type of challenge is questioning the government's legal authority to place the Guantánamo prisoners on trial as war criminals. So far, 15 detainees have been designated for war-crimes trials before a military commission specially authorized for that task by President Bush.

Last month, a federal judge in Washington derailed the war-crimes trial process when he ruled that US officials had failed to comply with the requirements of the Geneva Conventions and were violating safeguards enacted by Congress.

The ruling by US District Judge James Robertson came in the case of Salim Ahmed Hamdan, a Yemeni who worked as a driver for Mr. bin Laden in Afghanistan.

Since June 2002, Mr. Hamdan has been held and interrogated at Guantánamo. In July he was charged with conspiring to commit terrorism by being a member of Al Qaeda and was among the first four alleged Al Qaeda captives facing trial before the military commission. Hamdan denies any involvement in terrorism.

His lawyers challenged the legality of the commission process in papers filed not only with the commission in Guantánamo but also with Judge Robertson.