US: The US Supreme Court was urged yesterday to rein in President Bush's use of his powers as a wartime president, challenging his order to dispatch al-Qaeda suspects to trial before military tribunals.
In arguments that could redefine the balance between presidential power and the laws of war, lawyers for Salim Ahmed Hamdan, an inmate at Guantánamo, told the court that Mr Bush had violated basic military protections with his November 2001 executive order setting up the tribunals.
Mr Hamdan, a Yemeni accused of driving a pick-up truck for Osama bin Laden, was captured in Afghanistan in November 2001 and charged with war crimes.
The Bush administration claims he conspired with the al-Qaeda leader to carry out attacks in the US. He says he was merely working to support his family, and needed the $200-a-month salary.
The case challenges the administration's justification for holding people without recourse to US courts or the Geneva convention.
Terror suspects brought before the tribunals do not have the right to an attorney of their choice or to see the evidence against them. Even if they are acquitted and freed, the verdict can be reversed by the defence secretary, Donald Rumsfeld.
Mr Hamdan's lawyers contended yesterday that that makes the tribunals unconstitutional because they allow the president to define the crime, and select the prosecutor and judges who act as jury.
"This is a military commission that is literally unburdened by the laws, constitution and treaties of the United States," one lawyer, Neal Katyal, told the court.
To date, none of the 500 or so detainees at Guantánamo have appeared before a military tribunal, although 10 have been consigned for trial.
Under questioning from justices Antonin Scalia and Samuel Alito, Mr Katyal rejected the administration's argument that Mr Hamdan should wait until after his appearance before a tribunal to challenge the president's definition of the laws of war.
"The government has had four years to get their charges together on Mr Hamdan," he said.
"We are talking about just a set of core ideas that every country around the world is supposed to dispense when they create wartime trials, and even that minimum standard the government doesn't want to apply here."
Lawyers for the Bush administration say the president derives his authority for the executive order from his powers as commander-in-chief. In addition, they note that Congress recently enacted legislation barring Guantánamo detainees from being heard in the US courts.
The chief justice, John Roberts, has withdrawn from the case because he ruled on Mr Hamdan while serving on an appeals court. But Justice Scalia has resisted demands to withdraw from civil rights organisations, members of Congress, and a group of retired US generals and admirals. He came under a barrage of criticism after comments at an appearance at the University of Freiburg in Switzerland this month were reported by Newsweek magazine.
In his discussions, Justice Scalia reportedly said terror suspects did not deserve the right to a trial, adding that he had a son who had served in the US military in Iraq: "I had a son on that battlefield and they were shooting at my son, and I'm not about to give this man who was captured in a war a full jury trial. I mean it's crazy."
Lawyers for the detainees had been looking forward to yesterday's proceedings as a chance to begin pulling down the legal framework claimed by the Bush administration in its conduct of the "war on terror".But it is not clear that the Supreme Court will emerge with a firm directive when it hands down its decision later this year. The withdrawal of the chief justice brings the membership of the court down to eight, deepening the potential for a deadlock.
More importantly, the detainees may have been shortcircuited by a law passed by Congress last December which barred the use of torture, but added a rider denying Guantánamo detainees the right to have their cases heard in US federal courts.
HAMDAN CASE: the key facts
Shortly after the September 11th attacks, Mr Bush authorised the special tribunals, formally called military commissions. They drew immediate criticism from human rights groups as being fundamentally unfair.
The challenge was brought by Salim Ahmed Hamdan, a Yemeni accused of being Osama bin Laden's bodyguard and driver. He was captured in Afghanistan in November 2001 and transferred to the US base at Guantánamo Bay in Cuba.
Of the 490 suspected al-Qaeda and Taliban prisoners now at the base, 10 people, including Hamdan, face charges before a tribunal. There have been hearings in some of the cases, the first military tribunals for the US since the second World War.
The court also agreed to decide whether Guantánamo prisoners can enforce Geneva Convention protections in US courts. A third crucial issue is whether a new law has stripped the high court of its jurisdiction over the case.
The Hamdan case will be heard by eight of the nine high court members. Chief Justice John Roberts removed himself from the case. Before joining the Supreme Court, he was part of an appeals court panel that ruled against Hamdan.