U.S. Judge Halts War-Crime Trial at Guantánamo


Richard Moore


U.S. Judge Halts War-Crime Trial at Guantánamo 

Published: November 9, 2004 

UANTÁNAMO 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 criminals.

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 commission.

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. status.

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

Copyright 2004  The New York Times Company 


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Richard Moore (rkm)
Wexford, Ireland

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