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Justices to hear constitutional challenge to special war courts

Five years ago, Salim Hamdan was living all but anonymously in Taliban-ruled Afghanistan, driving a Toyota pickup for Osama bin Laden on his Kandahar farm.

On Tuesday, the tale of the wiry Yemeni with a fourth-grade education will take center stage at the U.S. Supreme Court, as lawyers argue a landmark case over whether President Bush had the power to create a special war court to try Hamdan.

An extraordinary case for extraordinary times, Hamdan's constitutional challenge claims that the court the Pentagon constructed is unfair and un-American. He's joined in his argument by a celebrated cast of supporters—a former secretary of state, retired federal judges and U.S. military officers, and international jurists—in a clash that's not lost on him.

"Are we going to be making history?" he asked his military lawyer, Navy Lt. Comdr. Charles Swift, as the case headed for the high court.

"I don't want to make history," he added. "I just want to go home."

He'll sit out the arguments in his 7-by-8-foot cell, 1,300 miles away, at the U.S. naval base at Guantanamo Bay, Cuba.

At issue is not whether the U.S. has the power to detain the 36-year-old father of two at the Navy base, where he'll have been held four years by the time the justices rule this summer.

The core of the challenge is in which American court, if any, Hamdan can face an American military charge of conspiracy as part of al Qaida's world-terrorism network.

Government lawyers say Congress gave President Bush the power to create a war court in its use-of-force resolution after the Sept. 11, 2001 attacks. They say Hamdan should challenge the new panel system only after he's tried at Guantanamo Bay, and only if he's convicted.

Hamdan's advocates argue that he deserves to face an already established U.S. court, not the first American war-crimes tribunal since World War II. They also argue that the U.S. breached international treaty obligations by denying Hamdan the possibility of prisoner-of-war status under the Geneva Conventions.

"Not only do these military commissions betray our commitment to the rule of law, they damage our reputation abroad and undermine our ability to promote the global rule of law as an antidote to terrorism," Yale Law School Dean Harold Hongju Koh says in a brief for former Secretary of State Madeleine Albright and 20 other former U.S. diplomats.

Hamdan's case not only tests the limits of presidential powers over the 10 Guantanamo captives facing trial by a tribunal of American military officers, called a military commission. Legal experts say his case also has implications for the nearly 500 "enemy combatants": whether and how they can turn to civilian courts to intervene on their behalf in Pentagon detention processes.

Said lawyer Scott Silliman, a retired Air Force colonel who now runs the Duke University Center on Law, Ethics and National Security:

"Hamdan gives the court the opportunity to define this war on terrorism, to give us a more current view of the constitutional authority of the president in this new type of war and the tools available to him in fighting it."

Bush advocates argue that America is facing an enemy unrivaled in its history, so it's crafted a court that shields classified information from public view to allow prosecutions in a war with no end in sight.

Air Force Col. Moe Davis, the chief prosecutor, noted the quandary of waiting until the war on terrorism ends to try captives: "Damned if you do, damned if you don't," he said.

In a sense, Hamdan started down his roundabout road to the Supreme Court on Nov. 13, 2001, when President Bush signed an order authorizing the defense secretary to detain foreigners indefinitely—and ordered him to prepare military commissions to try some of them.

Across the globe, when U.S. bombs blasted Afghanistan, Hamdan spirited his pregnant wife and 2-year-old daughter to safety in Pakistan.

Hamdan's attorney says Hamdan was returning a borrowed car when Afghan warlords captured him and handed him over to American forces, for a bounty that U.S. agents were offering for foreign Muslims, he believes.

By the time Washington inaugurated its offshore interrogation center with an 8,000-mile air bridge to Cuba in January 2002, Hamdan was already in American hands.

He was taken to Cuba four months later, manacled and masked in a 27-hour trip long after the Bush administration had declared captives there "unlawful combatants," not prisoners of war.

Hamdan told his attorney Swift that he wasn't a war criminal. He described himself as a privately paid $200-a-month driver who worked at bin Laden's farm; his livelihood vanished when terrorists crashed those planes into the Pentagon and World Trade Center.

On Feb. 10, 2004, Swift told his client's story for the first time: The man who would challenge President Bush's war powers was an alleged foot soldier, not an al Qaida architect.

Rather than enter a guilty plea, Swift sued the United States by filing a habeas corpus petition in U.S. District Court in Washington.

Defense attorneys from all four military services—the Army, Navy, Air Force and Marines—call the war court unconstitutional. They charge that the Bush administration crafted an unfair court rather than try Hamdan before civilian judges in the United States or at a U.S. military court-martial, which would offer him the same rights and protections as an American soldier.

"It's a separation of powers, checks-and-balances issue," said Marine Col. Dwight Sullivan, the chief commission defense counsel and a former lawyer with the American Civil Liberties Union.

Sullivan cautioned that, whatever the high court decides, it's not being asked to rule in the larger debate over whether the United States should close its prison camp at Guantanamo.

The chief justice of the United States, John G. Roberts, is recusing himself because as an appeals court judge he was part of the panel that unanimously upheld Bush's war powers in the Hamdan case.

Republican Sens. John Kyl of Arizona and Lindsey Graham of South Carolina argue that Hamdan's case shouldn't be before the high court in the first place. They championed a measure that Congress passed late last year stripping Guantanamo captives of pretrial civilian review.

Now the court must decide how much of that law stands, too.

The Bush administration originally argued that, as enemy combatants held offshore, Guantanamo captives couldn't sue in civilian court. The Supreme Court rejected that notion in

June 2004, opening the federal courts to review the case of any detainee who sues for his freedom.

"Guantanamo Bay is a military base in a foreign country," the senators write in their brief, echoing the government's position. "The military's mission of winning battles cannot be encumbered with a requirement that every enemy captured abroad be given a lawyer and a hearing."

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Rosenberg reports for The Miami Herald.

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(c) 2006, Knight Ridder/Tribune Information Services.

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