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Historic first terror trial opens at Guantánamo Bay, Cuba

Hamdan case tests special courts for 'illegal enemy combatants.'

By Staff writer of The Christian Science Monitor / July 21, 2008

A Guantanamo detainee, left, walks in a fenced-in exercise area as a guard patrols on the grounds of the maximum security prison at Camp 5, at Guantanamo Bay U.S. Naval Base, in Cuba.

Brennan Linsley/AP

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Osama bin Laden's former driver is scheduled to stand trial on Monday in the first war crimes tribunal at America's terrorist prison camp at Guantánamo Bay, Cuba.

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The historic action comes nearly seven years after President Bush first moved to establish military commissions to try suspected Al Qaeda terrorists.

The special military commission process was designed to offer a stripped-down version of justice to illegal enemy combatants who, by engaging in terrorism, were said to have forfeited any right to more robust legal protections.

"This is not a law enforcement action; it is war," former Deputy Defense Secretary Paul Wolfowitz said, defending the use of military commissions before a Senate panel in December 2001 – three months after the 9/11 attacks.

Military commissions have been used throughout US history. George Washington used them during the Revolution. Abraham Lincoln authorized them during the Civil War. And those accused of plotting President Lincoln's assassination were tried by a military commission.

In 1942, Franklin Roosevelt put a group of would-be German saboteurs on trial by secret military commission in Washington. The action was upheld by the US Supreme Court and provided a model for the Bush Administration.

But the Guantánamo commission process ran into trouble. It became a lightning rod for international criticism of the administration's controversial legal approach to the war on terror. President Bush's original commission procedures were struck down by the Supreme Court in 2005, and on June 12 the high court invalidated a substantial portion of a new legal regime created at Guantánamo by Congress and the White House in 2006.

Some legal analysts thought that ruling might scuttle plans to put the first of 20 detainees charged with war crimes on trial during the current election year and before President Bush leaves office in January. But last week, both a military judge at Guantánamo and a federal judge in Washington declined to apply the Supreme Court's ruling to pretrial attempts to block pending war crimes trials.

Despite his ruling, US District Judge James Robertson revealed a level of skepticism about the looming commission trials.

"The eyes of the world are on Guantanamo Bay," Judge Robertson wrote in an opinion released in Washington on Friday. "Justice must be done there, and must be seen to be done there, fairly and impartially."

That task falls to Military Judge Keith Allred, a US Navy captain, who has been appointed to preside over the first military commission trial.

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