The Miami Herald

2004 | Judge halts the trial of Bin Laden's chauffeur

GUANTANAMO BAY NAVY BASE, Cuba -- A federal judge on Monday declared unlawful the Pentagon's war crimes court judging Osama bin Laden's driver in a rebuke of President Bush's framework for detaining war-on-terror captives and trying them at Military Commissions.

The decision by U.S. District Judge James Robertson, sitting 1,300 miles away in Washington, D.C., brought pretrial motions here to a skidding halt in the case of Yemeni captive Salim Hamdan, 34.

It also raised questions about the future of the Military Commissions created by the Bush administration to try alleged terrorists captured around the world after the Sept. 11, 2001, attacks.

The Hamdan commission learned of the decision Monday in a note brought to court by a Marine in battle dress. Army Col. Peter Brownback, the presiding officer, declared an "indefinite recess" for his three-colonel Pentagon panel serving on the first U.S. war crimes court since World War II.

The Department of Justice slammed the decision. It said the Bush administration would seek an emergency stay to resume the trials. Separately, it will also challenge the decision at the more traditionally conservative federal appeals court in Washington.

"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, " said Mark Corallo, a spokesman for Attorney General John Ashcroft.

"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, " he said.

Navy Lt. Cmdr. Charles Swift, Hamdan's Pentagon defense lawyer, declared his client with a fourth-grade education "ecstatic that Judge Robertson had stood by in his demand to get a fair trial."

In a 45-page opinion, Robertson ruled that the Bush administration erred by not immediately granting Hamdan prisoner-of-war status under the Geneva Conventions and likewise was wrong to create Military Commissions that provide lesser protections than the Pentagon's own trial system, the Uniform Code of Military Justice.

"The Military Commission is not such a court. Its procedures are not such procedures, " wrote Robertson, a Navy veteran who was appointed to the bench by President Bill Clinton.

BUSH NOT 'TRIBUNAL'

The judge also wrote that Bush didn't have the power to unilaterally create commissions and didn't have the authority to confer a blanket category of enemy combatants on captives.

"The president is not a 'tribunal, ' " he said. "The government must convene a competent tribunal and seek a specific determination as to Hamdan's status under the Geneva Conventions. Until or unless such a tribunal decides otherwise, Hamdan has, and must be accorded, the full protections of a prisoner of war."

Soon after the first terror suspects were airlifted here from Afghanistan in 2002, Bush decreed that suspected Taliban and al Qaeda members would not be entitled to so-called battlefield Article V hearings that decide individually whether captives are POWs.

Rather, in a sweeping decision, the president declared the entire population here "enemy combatants, " an issue that has already gone to the U.S. Supreme Court.

To try to satisfy the court, the Pentagon in July created nonjudicial review boards, Combatant Status Review Tribunals, that give the captives no POW consideration but verify individually that they are enemy combatants. Robertson's ruling called the process inadequate.

Moreover, the Navy veteran said that the Bush administration's pick-and-choose application of the Geneva Conventions here could put American troops at risk.

"The government has asserted a position starkly different from the positions and behavior of the United States in previous conflicts, " he wrote, "one that can only weaken the United States' own ability to demand application of the Geneva Conventions to Americans captured during armed conflicts abroad."

The judge was acting on a petition brought by Hamdan, a single captive among the 550 so-called enemy combatants from 42 nations held for nearly three years.

A Yemeni who worked as bin Laden's $200-a-month driver on the al Qaeda mastermind's Kandahar farm, Hamdan denies being either a terrorist or an al Qaeda member.

He has said through his attorney that, if he can't go home, he wants to face charges in U.S. civilian court or through a military court-martial.

But the ruling clearly had sweeping consequences, given both the Justice Department's reply and interpretations by civil liberties and human rights lawyers.

"The spirit of it potentially extends more broadly to perhaps everything that is going on here at Guantánamo Bay, " said Neil Katyal, a Georgetown University law professor who sued on behalf of Hamdan in federal court and was co-defense counsel at Monday's hearing.

'HUGE DAY'

"It's a huge day for the Geneva Conventions, " said Human Rights Watch attorney Wendy Patten, adding the ruling "affirms that the president can't just declare people enemy combatants."

In addition, she said, the decision should end the U.S. government's reliance on World War II era case law, decided before the 1949 Geneva Conventions.

The three-member Military Commission panel made up of three colonels, two without any previous legal experience, suspended all its activities to study the ruling.

They had yet to decide whether they would continue writing decisions on a range of motions brought last week by attorneys for Australian David Hicks, who like the Hamdan team has filed a series of motions here challenging the war crimes court's legitimacy.




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