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Ruling stalls prosecution of detainee

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Posted on Tue, Nov. 09, 2004
Ruling stalls prosecution of detainee

By Carol Rosenberg

Knight Ridder


GUANTÁNAMO BAY, Cuba -- A federal judge Monday declared as unlawful the Pentagon's war crimes court in a stinging rebuke of President Bush's framework for detaining captives and trying them at military commissions.

The decision by U.S. District Judge James Robertson in Washington, D.C., brought pretrial motions to a skidding halt in the case of Osama bin Laden's driver, Yemeni captive Salim Hamdan, 34. It also raised questions about the future of the U.S. military commissions created by the Bush administration to try alleged terrorists captured around the world after the Sept. 11 attacks.

The commission at Guantánamo Bay learned of the decision Monday afternoon 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 said the Bush administration would seek an emergency stay to resume the trials. Separately, it also will 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-Qaida, 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, said his client was ``ecstatic that Judge Robertson had stood by in his demand to get a fair trial.''

In a 45-page opinion, Robertson said the Bush administration erred by not immediately granting Hamdan prisoner-of-war status under the Geneva Convention and 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 Clinton.

The judge also wrote that Bush did not have the power to unilaterally create commissions and did not 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 to Guantánamo Bay from Afghanistan in 2002, Bush decreed that suspected Taliban and Al-Qaida members would not be entitled to hearings that decide individually whether captives are POWs.

Rather, in a sweeping decision, the president declared the entire population at Guantánamo Bay ``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 non-judicial review boards called Combatant Enemy Status 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 judge said the Bush administration's pick-and-choose application of the Geneva Convention could put U.S. 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.''

Hamdan is a Yemeni who worked as bin Laden's $200-a-month driver on the Al-Qaida leader's Kandahar farm, but he denies being either a terrorist or an Al-Qaida member.

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 commission hearing.



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