From: "Rich Gauszka" 

"If you believe that these are full and fair trials, you believe that
the Bill of Rights is irrelevant," Hamdan's Pentagon-appointed defense
attorney, Navy Lt. Cmdr. Charles Swift, declared on the front steps of the
marble-columned courthouse.

http://www.mercurynews.com/mld/mercurynews/news/politics/14208166.htm

"The commission is operating in totally uncharted waters; it's
charging a violation in a stateless, territorial-less conflict, something
which the full laws of war have never applied," replied Katyal, a
Georgetown University Law Center professor who was a clerk for Justice
Stephen Breyer a decade ago.

Uniformed American military officers were scattered throughout the gallery,
among them lawyers from all four services - Marines, Air Force, Army and
Navy - who in effect mutinied against their commander in chief by alleging
that Bush's commissions strip foreign captives of fundamental rights.

"If you believe that these are full and fair trials, you believe that
the Bill of Rights is irrelevant," Hamdan's Pentagon-appointed defense
attorney, Navy Lt. Cmdr. Charles Swift, declared on the front steps of the
marble-columned courthouse.

Retired military officers, civil liberties lawyers, former diplomats and
international law experts all filed briefs on behalf of the 36-year-old
Yemeni with a fourth-grade education, arguing that the Bush administration
went too far by creating a commission outside an explicit framework set out
by Congress and ignoring many of the protections of U.S. military justice,
which has a provision for tribunals.

The justices seemed especially intrigued with the nature of the crime
alleged, conspiring with al-Qaida. At least four justices asked questions
related to the charge.

Katyal called the conspiracy charge so broad and unfocused that "a
little old lady in Switzerland who donates money to al-Qaida, and that
turns out to be a front for terrorist acts ... might be swept up within
this broad definition. That's why international law has so rejected the
concept of conspiracy."

Clement argued that the court shouldn't even be considering the case
because Bush had signed a law Dec. 30 that effectively stripped Guantanamo
captives of pre-commission habeas corpus challenge.

Some justices focused on whether Congress intentionally or inadvertently
suspended the Writ of Habeas Corpus for captives in Cuba; Clement argued
that Congress' intent was irrelevant, an argument that seemed to find favor
from Justice Antonin Scalia, for whom Clement once clerked.

Hamdan claims through his lawyers that he never joined al-Qaida, wasn't a
warrior and was merely a civilian driver who earned $200 a month driving a
pickup from bin Laden's private farm. His lawyer said Afghan militiamen
captured him along the Afghan border in 2001, after he evacuated his
pregnant wife and 2-year-old daughter to Pakistan, and turned him over to
U.S. troops who sent him to Guantanamo.

Breyer asked what would stop the president from "picking up an
alien" and holding the same type of trial in Toledo, Ohio.

Justice Anthony Kennedy questioned whether Hamdan wasn't "uniquely
vulnerable," and therefore not entitled to certain prisoner-of-war
considerations under the Geneva Conventions.

"I don't think he's protected by the Geneva Conventions, but that's
largely because he chose not to comply with the basic laws of war,"
Clement said. "Nobody has a claim here that they were part of the
uniformed al-Qaida division that complied with all of the laws of war such
that they are entitled to POW status."

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