US supreme court weighs Bush's Guantanamo tribunals

WASHINGTON, Mar 28 (Reuters) U S Supreme Court justices today sharply questioned the legal basis for military tribunals set up by President George W. Bush in his war on terrorism.

Hearing a challenge by Osama bin Laden's former driver, several of the justices appeared troubled by the administration's position that international laws including the Geneva Convention do not apply to the Guantanamo prisoners.

The justices also expressed reservations over the administration's contention that a recent law stripped the Supreme Court of the right to hear an appeal by Salim Ahmed Hamdan, a Yemeni and bin Laden's driver in Afghanistan.

''It's an extraordinary act, I think, to withdraw jurisdiction from this court in a pending case,'' Justice Ruth Bader Ginsburg said during arguments that may yield the most significant ruling on presidential war powers since World War Two.

''Why should we assume that Congress withdrew our jurisdiction to hear this case?'' she asked U S Solicitor General Paul Clement, who sought to defend Bush's broad powers in the war on terrorism.

At issue are special war crimes tribunals Bush established shortly after the September 11 attacks for trying prisoners held at the U S military base at Guantanamo Bay in Cuba.

Hamdan's lawyers challenged the tribunals as unconstitutional because they allow the president, through his military subordinates, to define the crime, select the prosecutor and judges and set all the rules.

Justice Stephen Breyer said he was concerned the president, and not the U S Congress, would define what is a crime. ''Isn't there a separation of powers problem there?'' Justice John Paul Stevens said he had similar reservations.

''I don't think we've ever held that the president can make something a crime'' when international law holds that it is not, he said.

HAMDAN 'UNIQUELY VULNERABLE' Justice Anthony Kennedy, who could control the outcome as the high court's potential swing vote between liberals and conservatives, also questioned the government's arguments. ''Why isn't Hamdan a uniquely vulnerable individual?'' he asked.

Justice David Souter appeared visibly upset by Clement's suggestion that Congress, without explicitly saying so, had in the new law suspended the right of Guantanamo prisoners to bring court challenges.

Georgetown University law professor Neal Katyal, arguing for Hamdan, said Bush should not be given ''a presidential blank check.'' He said Bush lacked the power on his own to create the tribunals.

Hamdan is accused of conspiracy, as are the other nine Guantanamo prisoners who face charges. Katyal said conspiracy has not been a crime traditionally covered by international war crimes tribunals, including those after World War II and more recent ones involving Rwanda and Yugoslavia.

Justices Antonin Scalia and Samuel Alito, a Bush appointee who joined the court last month, seemed sympathetic to the government's arguments.

Scalia stayed in the case, even though five retired generals and admirals urged him to remove himself because of recent remarks in Switzerland dismissing the idea that the prisoners have constitutional rights.

The case was heard without Chief Justice John Roberts, who removed himself because he was previously on a U.S. appeals court panel that ruled against Hamdan.

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