Judge Halts War-Crime Trial at Guantánamo

The New York Times
November 9, 2004

Judge Halts War-Crime Trial at Guantánamo
By NEIL A. LEWIS

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 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 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.