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Judge allows Hamdan military trial to go forward

It's a win for the Bush administration, which insists that Guantánamo proceedings are necessary to fight the war on terror.

By Staff writer of The Christian Science Monitor / July 18, 2008

A federal judge in Washington has refused to halt the war crimes trial of Osama bin Laden's former driver.

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The action clears the way for what is expected to become the first trial of a terror suspect via military commission at Guantánamo Bay, Cuba, on Monday.

Lawyers for Salim Ahmed Hamden had asked US District Judge James Robertson to delay the start of the war crimes trial, saying the legal foundations of the tribunal process had been undermined by a recent US Supreme Court decision.

After a two-hour hearing on Thursday, Judge Robertson declined to block the trial. In a statement from the bench he said that under the military commission system set up by Congress and the White House, Mr. Hamdan's lawyers must wait until a final verdict in the trial before raising their constitutional challenges.

A military judge at Guantánamo had earlier rejected similar arguments from Hamdan's lawyers.

Judge Robertson's decision not to delay the trial marks a victory for the Bush administration in its effort to build legitimacy for its controversial legal approach to the war on terror.

Military officials have been pushing hard – despite a string of legal setbacks – to conduct several war crimes trials this year.

Hamdan is facing trial on terror conspiracy and material support charges. His lawyers had urged Judge Robertson to postpone the military tribunal to allow Hamdan a new round of legal challenges.

The case was being closely watched because it could have greatly increased the constitutional protections applicable not only in Hamdan's trial, but also in the trial of alleged 9/11 mastermind Khaled Shaikh Mohammed and other Al Qaeda leaders.

The Bush administration's military commission process has sparked condemnation by critics in the US and overseas. They say it is rigged to produce convictions by allowing hearsay evidence coerced during harsh interrogations.

Administration officials defend the special military commission process as a necessary innovation to wage the war on terror without jeopardizing sensitive intelligence sources and methods.

The Hamdan hearing was among an array of cases moving forward in the wake of the Supreme Court's June 12 decision extending certain constitutional protections to terror suspects at Guantánamo.

Federal judges in Washington are gearing up to hear scores of habeas corpus petitions challenging the legality of their open-ended detention at the terror prison camp.

While the Supreme Court made clear that habeas protections cover detainees at Guantánamo, the justices left it to the lower courts to define the scope of those protections and to work out the details of how to apply them in individual cases.

In the Hamdan case, government lawyers argued that habeas protections at Guantánamo apply only to detainees who have not been charged with war crimes. Of the 265 Guantánamo detainees, 19 – including Hamdan - have been charged as war criminals.

"The purpose of constitutional habeas is to test the legality of detention, not to challenge a trial in advance," wrote Justice Department lawyer Alexander Haas, in the government's brief to Judge Robertson.

"The ability to try alien enemy combatants suspected of war crimes in a timely fashion is an important part of the United States' war effort, and the public has a strong interest in seeing such individuals brought to justice as soon as possible," Mr. Haas wrote. "For this Court to enjoin the ongoing military commission process now ... would harm those significant interests as well as undermine the separation of powers principle that is so fundamental to our government."