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.
At least two bills introduced in Congress would amend the MCA to allow detainees a right to file habeas corpus petitions challenging the legality of their detentions. They would also beef up legal protections for those being tried by the commissions.
In February, the US court of appeals in Washington, D.C., upheld the constitutionality of the MCA against a challenge by a group of detainees. On April 2, the Supreme Court declined to hear that case. Three justices, Stephen Breyer, David Souter, and Ruth Bader Ginsburg, dissented from the action. They said the issue deserved the court's immediate attention.
But two justices, John Paul Stevens and Anthony Kennedy, said the detainees must exhaust judicial remedies available to them before bringing their case to the high court. Congress established a streamlined system for judicial review of detainee cases at Guantánamo in lieu of habeas review, but none of the detainees has yet undergone that judicial process.
Justices Kennedy and Stevens said the detainees could challenge the streamlined process once they'd tested its provisions.
In today's action, the court issued a two-sentence order announcing that the petition was denied. It added that Justices Souter, Ginsburg, and Breyer would have granted the petition to hear the case.
It is possible the court may decide to take up Hamdan's case at a later time. His lawyers filed the appeal before his case has even been heard by the federal appeals court. Once the appeals court rules, Hamdan could again ask the high court to consider the case.
Khadr is facing five charges, including murder, attempted murder, conspiracy to engage in terrorism, providing material support for terrorism, and spying. Despite the seriousness of the charges, he will not face the death penalty.
The central charge in the Khadr case is that he engaged in a firefight with US and Afghan forces during an assault on a suspected Al Qaeda compound on July 27, 2002. After the firefight, US soldiers entered the compound. Commission documents say Khadr then threw a grenade that killed US Army Sgt. Christopher Speer.
Khadr's charge sheet also says he converted land mines into improvised explosive devices and planted the devices beside roads to kill US and coalition forces. He is also alleged to have provided material support to a terror organization by becoming an Al Qaeda fighter. He allegedly received Al Qaeda training in the use of rocket-propelled grenades, rifles, pistols, hand grenades, land mines, and other explosives.
In contrast to the Khadr case, there is no indication that Hamdan ever participated in a violent incident. He faces two charges, conspiring with Al Qaeda, which was carrying out terrorist attacks, and providing material support for terrorism.
Specifically, Hamdan is alleged to have served as Mr. bin Laden's driver and bodyguard, transported and delivered Al Qaeda weapons, and received training in the use of weapons at an Al Qaeda training camp.