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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.

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Hamdan's lawyers said their client should enjoy the same legal safeguards as other detainees at Guantánamo.

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"The Government notes that the public has a strong interest in the prompt, effective, and efficient administration of justice. Hamdan could not agree more," wrote Hamdan's lawyer Neal Katyal, in his brief to the judge. "But ... rushing to try him just weeks after the Supreme Court has upended the foundations for his commission and acknowledged his right to habeas will lead to confusion, inefficiencies, and uncertainty."

Mr. Katyal and Judge Robertson had been in this position before. In 2004, Katyal, a law professor at Georgetown Law Center in Washington, argued that the military commission process violated essential legal safeguards. Judge Robertson agreed and struck down the commissions. An appeals court reversed the decision, but the US Supreme Court ultimately ruled in Hamdan's favor.

That prompted the Bush administration and Congress to pass the Military Commissions Act of 2006 in defiance of the Supreme Court's ruling. On June 12, the high court responded by striking down a key portion of the MCA.

Although Hamdan was not a party in that case, the decision is consistent with legal positions staked out by his lawyers.

In Thursday's hearing the question was whether Hamdan would benefit from the high court victory.

"All he wants is a fair trial," Katyal wrote in his brief.

"If individuals merely being detained have a right to challenge their detention, then detainees who are set to be tried must have an even stronger right to challenge a trial that may result in life imprisonment or death," Katyal said in his brief.

Hamdan, a Yemen national, was captured in Afghanistan in November 2001. He is accused of plotting with Al Qaeda to murder US military personnel. The charge is based on the presence of SA-7 surface-to-air missiles in his car at the time he was captured.

Hamdan says he was not a member of Al Qaeda or a supporter of Mr. bin Laden, merely his employee. Military lawyers say Hamdan was delivering the missiles to Al Qaeda fighters during active hostilities near Takta Pol, Afghanistan, for use against US forces. They say he also served as a driver and bodyguard to bin Laden.

If convicted, Hamdan could face life in prison.

The central issue in the Hamdan hearing before Judge Robertson was whether he should be permitted to apply constitutional standards to challenge the commission process in pre-trial motions.

Hamdan's lawyers said his commission trial violated several constitutional protections and that the lawyers must be permitted to litigate those issues before a trial takes place.

Government lawyers said the MCA requires that all appeals by a defendant be postponed until after any conviction.

Katyal argued that the conspiracy and material support charges filed against Hamdan are not war crimes, and their adoption by Congress as war crimes after Hamdan's capture violated the Constitution's ex post facto clause. He said the military commission process violated Hamdan's right to equal protection and due process, and did not comply with the Geneva Conventions.

Government lawyers said the military commission process was created by Congress and features an impartial judge and jury, as well as a "full panoply" of trial rights.

"Such rights for an alien charged with war crimes are utterly unprecedented and far exceed the protections given to the defendants [in prior war crimes tribunals]," Haas said.

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