Global Policy Forum

By Warren Richey

In declining to take up a potential landmark case challenging the legality of the Pentagon's terrorist tribunal process, the US Supreme Court may have delayed by as much as a year the commencement of war-crimes trials of suspected Al Qaeda members at the Guantanamo Bay Naval Station in Cuba. The trials were expected to begin in the fall of 2004 but were postponed in the wake of a November ruling by a federal judge that the military commission process was in violation of the Geneva Conventions.

The November ruling came in the case of Salim Hamdan, a former driver for Osama bin Laden in Afghanistan. Mr. Hamdan is accused of involvement in terrorism, a charge he denies. He was set to become one of the first Guantánamo detainees to stand trial before a military commission. But the entire process was struck down Nov. 8 by US District Judge James Robertson in Washington.

In an order released Tuesday, the Supreme Court without explanation declined to take up the case, Hamdan v. Rumsfeld, prior to the appeal being heard by a federal appeals court panel in Washington. That court is set to hear oral argument on March 8. Once the appeals court rules, either party may once again ask the Supreme Court to consider the case. Legal analysts say it could take as long as a year for the case to work its way through the appeals court process and back up to the Supreme Court.

A Pentagon spokesman, Maj. Michael Shavers, says four commission cases are being held in abeyance pending the outcome of Hamdan's March 8 hearing. No decision has yet been made on whether to resume commission trials should the government prevail on March 8, he says. Major Shavers says commission officials are continuing to work on other cases. "Things are not at a standstill," he says.

But for Hamdan, the decision means delay. "Mr. Hamdan and some of the other commission defendants have waited over three years to have their trial," says his lawyer, Neal Katyal, who is also a professor at Georgetown Law Center. "We certainly have grave concern that given the delay thus far, this is going to further delay matters."

At issue in Hamdan v. Rumsfeld are two key questions. First, to what extent are alleged members of Al Qaeda entitled to the protections of the Geneva Conventions? Second, to what extent are Al Qaeda suspects entitled to the same due process protections afforded to American soldiers in military trials?

The Bush administration takes the position that suspected Al Qaeda members are not entitled to the protections of the Geneva Conventions because they are terrorists who target civilians rather than soldiers who comply with the laws of war. Judge Robertson disagreed. He ruled that the Bush administration has failed to abide by the terms of the Geneva accords and has adopted war-crimes trial procedures that ignore congressionally authorized due process rights.

Government lawyers immediately appealed Robertson's ruling to the appeals court and asked for expedited review. Hamdan's lawyers went one better. They asked the US Supreme Court to sidestep the usual appeal process and immediately take up the case. They argued that the significant national and international implications and the need for clarity make quick action necessary. They also suggest in their brief that their client, Hamdan, is being wrongly imprisoned at Guantánamo. "Each month that passes while the D.C. Circuit ponders precisely the same legal questions is a month that can never be returned if, as [Hamdan] believes, he has committed no offense," writes Mr. Katyal in his brief.

Acting Solicitor General Paul Clement urged the justices to allow the case to work its way through the appeals court before hearing the case. The government may enjoy an advantage at the appeals court. The three judges set to hear the case were all appointed by Republican presidents. Robertson was appointed by President Clinton, a Democrat.