U.S. Judge Halts War-Crime Trial at Guantánamo
By NEIL A. LEWIS
Published: November 9, 2004
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GUANTÁNAMO BAY, Cuba, Nov. 8 - A federal judge ruled Monday that
President Bush had both overstepped his constitutional bounds and
improperly brushed aside the Geneva Conventions in establishing military
commissions to try detainees at the United States naval base here as war
The ruling by Judge James Robertson of United States District Court in
Washington brought an abrupt halt to the trial here of one detainee, one
of hundreds being held at Guantánamo as enemy combatants. It threw into
doubt the future of the first set of United States military commission
trials since the end of World War II as well as other legal proceedings
devised by the administration to deal with suspected terrorists.
The administration reacted quickly, saying it would seek an emergency
stay and a quick appeal.
Judge Robertson ruled against the government in the case of Salim Ahmed
Hamdan, a former driver for Osama bin Laden in Afghanistan who is facing
terrorism charges. Mr. Hamdan's lawyers had asked the court to declare
the military commission process fatally flawed.
The ruling and its timing had a theatrical effect on the courtroom here
where pretrial proceedings were under way with Mr. Hamdan, a 34-year-old
Yemeni in a flowing white robe, seated next to his lawyers.
About 30 minutes into the afternoon proceedings, the presiding officer,
Col. Peter S. Brownback III, was handed a note from a Marine sergeant.
Colonel Brownback immediately called a recess and rushed from the room
with the commission's two other officers. When he returned, he announced
that the proceeding was in recess indefinitely and he departed quickly.
Neal K. Katyal, a Georgetown Law School professor who is one of Mr.
Hamdan's lawyers and who supervised the federal lawsuit, told the
puzzled courtroom audience, "We won."
Mark Corallo, a Justice Department spokesman, said in a statement, "The
process struck down by the district court today was carefully crafted to
protect America from terrorists while affording those charged with
violations of the laws of war with fair process, and the department will
make every effort to have this process restored through appeal."
Mr. Corallo said, "By conferring protected legal status under the Geneva
Conventions on members of Al Qaeda, the judge has put terrorism on the
same legal footing as legitimate methods of waging war."
Judge Robertson ruled that the administration could not under current
circumstances try Mr. Hamdan before the military commissions set up
shortly after the Sept. 11 terrorist attacks but could only bring him
before a court-martial, where different rules of evidence apply.
In the 45-page ruling, the judge said the administration had ignored a
basic provision of the Geneva Conventions, the international treaties
signed by the United States that form the basic elements of the laws
governing the conduct of war.
The conventions oblige the United States to treat Mr. Hamdan as a
prisoner of war, the judge said , unless he goes before a special
tribunal described in Article 5 of the Third Geneva Convention that
determines he is not. A P.O.W. is entitled to a court-martial if there
are accusations of war crimes but may not be tried before a military
The United States military did not conduct Article 5 tribunals at the
end of the Afghanistan war, saying they were unnecessary. Government
lawyers argued that the president had already used his authority to deem
members of Al Qaeda unlawful combatants who would be deprived of P.O.W.
But Judge Robertson, who was nominated to be on the court by President
Bill Clinton, said that that was not enough. "The president is not a
panel," he wrote. "The law of war includes the Third Geneva Convention,
which requires trial by court-martial as long as Hamdan's P.O.W. status
is in doubt."
The government is in the midst of conducting a separate set of tribunals
here at Guantánamo, similar to those required by the Geneva Conventions,
to determine whether detainees were properly deemed unlawful enemy
combatants. Those proceedings, called combatant status review tribunals,
were quickly put into place by the Bush administration after the Supreme
Court's ruling in June that the Guantánamo prisoners were entitled to
challenge their detentions in federal court. Judge Robertson said,
however, that those tribunals were not designed to satisfy the Geneva
Convention requirement and were insufficient.
The ruling on Monday may also make those tribunals obsolete, but Scott
L. Silliman, professor of military law at Duke University, said the
military might modify them to fit the Geneva Convention requirements.
The judge also said that in asserting that the Guantánamo prisoners are
unlawful combatants and outside the reach of the Geneva Conventions,
"the government has asserted a position starkly different from the
positions and behavior of the United States in previous conflicts, one
that can only weaken the United States' own ability to demand
application of the Geneva applications to Americans captured during
armed conflicts abroad."
Professor Katyal told reporters that while the ruling on Monday applied
only to the Hamdan case, "the spirit of the ruling extends more broadly,
perhaps to everything that is going on here in Guantánamo Bay."
Mr. Hamdan is one of about 63 Guantánamo detainees on whose behalf
lawsuits have been filed in federal court. The lawsuits consist of
habeas corpus petitions, in which people may demand that the government
provide some explanation as to why they are imprisoned.
Critics have said that the military commissions fall short of the rights
that defendants have in courts-martial in two respects. But Judge
Robertson said that one of those reasons, the inability to appeal to the
federal judiciary, was not a serious problem. The principal problem, he
said, was that defendants before commissions did not have a fair
opportunity to respond to charges because some of the evidence was
classified and would be withheld. He said that no American court could
approve of any proceeding that had such a glaring lack of the right to
confront one's accusers and the evidence.
Stephen Saltzburg, a professor at the George Washington University Law
School, said it was inevitable that a federal judge somewhere would find
fault with the administration's approach "that you can keep people
locked up for two and three years and you still don't really know who
they are and why we're keeping them."
Professor Saltzburg also said the ruling could set up a sharp
confrontation between the judiciary and the executive branch. "No
president, Democrat or Republican, is going to welcome the idea that
judges who sit in Washington are going to supervise who is detained on
the battlefield," he said.
Capt. Brian Thompson of the Air Force, who is defending one of the other
three detainees who have been charged with war crimes before a military
commission, said he was confident that Judge Robertson's ruling would
apply to his client as well. "Not in a strict legal sense," he said,
"but certainly in a practical sense."
Commission officials said they were considering whether to halt action
on the other cases as well.