2004 | Historic ruling puts Guantánamo trials on hold

GUANTANAMO BAY NAVY BASE, Cuba -- As Salim Hamdan's lawyer tells it, the Yemeni captive with a fourth-grade education had a question in a prison camp conversation about strategy for his upcoming U.S. military war crimes trial.

"Are we going to be making history?" he asked after his Pentagon-appointed defense attorney, Navy Lt. Cmdr. Charles Swift, described plans to challenge the very structure of the war crimes court.

Then, glumly, the Yemeni added, "I don't want to make history. I just want to go home."

Hamdan, 34, isn't likely to go home anytime soon. But this week the man who worked as Osama bin Laden's driver on his Afghanistan farm made legal history by getting a federal judge to slam the brakes on the Bush administration's military trials, known as commissions.

In his decision, U.S. District Judge James Robertson did not dispute the United States' right to hold prisoners in the ongoing war on terrorism. Rather, he attacked the system the Pentagon is using to hold and prosecute them.

The Defense Department, arguing that portions of the Geneva Conventions did not apply to alleged terrorists, has denied prisoners hearings to decide whether they are prisoners of war. It has also refused to use the military's own justice system to try them at court-martial.

Robertson's ruling may not hold. The Justice Department has vowed to restart the process that Robertson stopped, and then appeal his ruling in its entirety.

But this week's drama was the fruit of a series of civilian attacks on the foundations of the Guantánamo prison that have been winding for nearly three years through the federal courts, an arena where the Pentagon did not want to go.

Ever since the Bush administration set up the offshore prison camp, the Pentagon has told the civilian courts that they have no authority to intrude.

The government argues that the military's right to shun civilian intrusion flows from Congress' resolution after the Sept. 11, 2001, attacks authorizing President Bush to "use all necessary and appropriate force against those nations, organizations or persons he determines planned, authorized, committed or aided the terrorist attacks."

Following the U.S. attack on Afghanistan, captives from 42 nations were dispatched to Guantánamo Bay. The commissions came later, in a bid to impose a system of justice on the captives. Defense lawyers call it victor's justice.


Constitutional law Professor Douglas Kmeic said in an e-mail from Pepperdine University Tuesday that the Bush administration is likely to win its appeal by arguing a sweeping presidential power to prosecute war crimes.

"If judges are going to continue to second-guess military judgment and stretch statutes to hamstring the conduct of the war . . . the president may well need to consider, as a matter of successfully fighting the war on terror, to postpone the trials until the war is concluded, " said Kmeic, a former assistant attorney general under Presidents Ronald Reagan and George H.W. Bush.

Civilian lawyers have so far managed to intrude only marginally into the realm that the military declared taboo.

Civilian lawyers for 63 of the detainees won permission in the courts to meet with their clients - for the first time, and without intelligence monitoring - something that the Pentagon declared off-limits for more than two years.

The Supreme Court also forced the Pentagon to go backward and recertify, one by one, that the prisoners were legitimately classified as enemy combatants, a process that has so far let only one of the prisoners go home. Robertson characterized the Combatant Status Review Tribunals as fatally flawed, setting the stage for a future civilian-military confrontation over the system in higher courts.


But just last month, U.S. District Judge John Bates handed the civilians a setback. He denied defense lawyers' requests - based on allegations of abuse of detainees in U.S. custody - to have an independent, civilian doctor check the health of Canadian Omar Khadr, 18, held at Guantánamo for allegedly killing a U.S. soldier in Afghanistan

Bates found that absent a substantiated claim that the teenager was abused, civilians didn't have a right to look over the shoulder of the military.

"Not for a moment are they willing to concede that the detainees have any rights. They are stubbornly sticking to their guns, " said New York lawyer Avidan Cover, senior associate at Human Rights First, the new name of the Lawyers Committee for Human Rights. "They say it's a purely military matter, the judges are not involved in this at all."

So as the process continues, Monday's ruling indeed made history by suspending the military commissions. The three-colonel panel that was hearing Hamdan's case, which was scheduled to come to trial Dec. 7, left Guantánamo Bay on Tuesday with no further hearings planned - for either Hamdan or Australian David Hicks, 29, whose trial has been postponed until March 15.