High Court To Review Terror Trials

The Supreme Court agreed Monday to consider a challenge to the Bush administration's military tribunals for foreign terror suspects, a major test of the government's wartime powers and a case presenting the first conflict for new Chief Justice John Roberts.

The case was brought by Osama bin Laden's driver, reports CBS News correspondent Bob Fuss, but raises a much bigger question: Just what rights do those being held indefinitely in Guantanamo Bay have?

This case also puts the new chief justice in an awkward spot because it is one of his rulings the Supreme Court is going to consider. Roberts, when he was an appeals court judge, took part in the decision to uphold the Bush administration's setup of military tribunals to judge those at Guantanamo.

It is an appeal of that ruling that the high court on which he now sits has decided to hear. Lawyers for Salim Ahmed Hamdan were expected to ask Roberts to participate in the case, to avoid a 4-4 tie.

"This is a big step by the U.S. Supreme Court," CBSNews.com legal analyst Andrew Cohen said, "because what the court is saying by taking this case is that it has some questions about the U.S. policy of trying these detainees in Guantanamo Bay and whether that practice violates either international law or the Constitution. So it is indeed a major test for the administration challenged in the courts."

The court's intervention was a surprise. In 2004 justices took the first round of cases stemming from the government's war on terrorism. Justice Sandra Day O'Connor, who is retiring, wrote in one case that "a state of war is not a blank check for the president when it comes to the rights of the nation's citizens."

The announcement of the court's move came shortly after President Bush declared anew that his administration does not torture suspects.

The announcement came as President Bush said that while the U.S. will "aggressively" pursue and interrogate terror suspects, U.S. personnel do not engage in torture.

"Any activity we conduct is within the law. We do not torture," he told a news conference in Panama.

Mr. Bush did not specifically answer a reporter's question about reports of CIA prisoner camps in Europe for terror suspects, reports CBS News White House correspondent Mark Knoller. The administration is trying to get Congress to exempt the CIA from legislation banning the use of torture.

Hamdan's case brought a new issue to the court — the rights of foreigners who have been charged and face a military trial in a type of proceeding resurrected from World War II. Trials of Hamdan and three other low-level suspects were interrupted last fall when a judge in Washington said the proper process had not been followed.

The men are among about 500 foreigners, many swept up in the U.S.-led war in Afghanistan, who have been held at the U.S. military prison in Cuba. The government had planned to proceed with a military trial for another foreigner, Australian David M. Hicks, with a pretrial hearing later this month, but that will likely be stalled now.

Guantanamo Bay has become a flash point for criticism of America overseas and by civil libertarians. Initially, the Bush administration refused to let the men see attorneys or challenge their imprisonment. The high court in 2004 said U.S. courts were open to filings from the men, who had been designated enemy combatants.

Retired military leaders, foreign legislators, historians and other groups had pressed the Supreme Court to review the case of Hamdan, who like many Guantanamo inmates began a hunger strike over the summer.

A three-judge panel of the United States Court of Appeals for the District of Columbia Circuit, including Roberts, ruled against Hamdan, finding that the 1949 Geneva Convention governing prisoners of war does not apply to al Qaeda and its members.

The ruling was handed down shortly before Roberts was named to the Supreme Court. Ethics experts have disagreed over whether Roberts should have recused himself from that case, because he was being interviewed for the O'Connor seat while the matter was pending.

The administration argued that it was unnecessary for the court to get involved because the Pentagon had relaxed the rules for tribunals, enabling classified information to be shared with defendants "to the extent consistent with national security, law enforcement interests and applicable law." The government also changed the structure of the panels that will hear the cases and decide the men's punishment, with death sentences possible.

Hamdan's lawyer, Georgetown University professor Neal Katyal, said in a filing that "it is a contrived system subject to change at the whim of the president."

"With constantly shifting terms and conditions, the commissions resemble an automobile dealership instead of a legal tribunal dispensing American justice and protecting human dignity," he wrote.

Hamdan, who was captured in Afghanistan in November 2001, denies conspiring to engage in acts of terrorism and denies he was a member of al Qaeda. He has been charged with conspiracy to commit war crimes, murder and terrorism.

Trial proceedings for Hamdan and three other men were begun last summer but the process was halted after a district court ruled that Hamdan could not be tried by a military commission unless a "competent tribunal" determined first that he was not a prisoner of war.

Besides Hamdan, the others who have been charged are an al Qaeda accountant, a propagandist and a Taliban fighter.

The case is Hamdan v. Rumsfeld, 05-184.