Supreme Court declines to enter fray on detainee trials

The US Supreme Court has helped clear the way for the next round of special trials by military commissions at the terror detention camp at Guantánamo Bay, Cuba.

On Monday, the court declined to take up a joint appeal filed by former Osama bin Laden driver Salim Ahmed Hamdan of Yemen and Omar Khadr, a Canadian national, who faces murder charges for allegedly throwing a hand grenade that killed a US soldier in Afghanistan. Mr. Khadr was 15 years old at the time.

Following the recent guilty plea by Australian David Hicks, Khadr and Mr. Hamdan are designated as the next detainees slated for commission trials at Guantánamo. Last week, Khadr's case was formally referred to a military commission for trial.

While Mr. Hicks's guilty plea technically provided the first conviction under the new military commission process, that process remains largely untested in the crucible of an ongoing trial.

Hamdan's case has already been the subject of an important Supreme Court decision. It provided the vehicle by which the high court last June invalidated the Bush administration's military commission process. In reaction to that decision, Congress passed the Military Commissions Act, undercutting or reversing several high-court holdings dealing with detainees in the war on terror.

Lawyers for the two Guantánamo detainees had urged the justices to take up their cases to examine the constitutionality of the Military Commissions Act (MCA). They also asked the justices to determine whether alleged enemy combatants facing military commission trials are protected by basic constitutional rights, including the right to file habeas corpus challenges in US federal courts.

"The eyes of the world will be on these trials, and it will be extremely detrimental for them to take place in the legal vacuum created by this administration at Guantánamo," Hamdan's lawyer, Neal Katyal, told a Senate hearing on Thursday.

In his brief to the court, Mr. Katyal added, "If this court were to deny [the appeal], trials at Guantánamo would begin against the backdrop of no constitutional rights at all."

US Solicitor General Paul Clement says in his brief to the court that Congress has struck the proper balance between legal protections enjoyed by the accused, the availability of judicial review, and executive power to wage the war on terror. "No other captured enemy combatants in the history of this country, or any other, have enjoyed such privileges," he writes.

The action by the high court comes as the Justice Department is seeking the dismissal under the MCA of hundreds of pending habeas corpus appeals filed by lawyers on behalf of Guantánamo detainees. As part of that effort, the Justice Department is trying to limit the ability of the lawyers to have continuing contact with Guantánamo detainees. Lawyers for the detainees are countering with a flurry of creative legal maneuvers designed to entice the Supreme Court into the battle. So far, the court has declined repeated invitations.

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