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November 08, 2004

Nov. 8, 2004 (cont.): Enter the Federal Court

Nov. 8 (cont.): Enter the Federal Court

Salim Ahmed Hamdan walked into the military commission courtroom when proceedings began early this afternoon, flanked by two solid military policemen. He wore a white headdress and a checkered sport coat hung loosely on his slight and wiry frame. His lawyers, Lieutenant Commander Charlie Swift, and civilian counsel, Professor Neal Katyal, shook hands with him.

The three commission members then entered, and Presiding Officer Colonel Peter Brownback called the proceedings to order. A number of small preliminary matters were addressed first, and Presiding Officer Brownback clarified that the defense team now has the support Swift had sought back in August, with two additional lawyers, both Katyal and Captain Auterino. This is a welcome improvement given the sheer volume of motions and complex legal issues and the prosecution’s abundant resources.

Preliminary Matters

Presiding Officer Brownback reviewed a series of developments since August when the case had last been before the commission. One notable matter is an interlocutory decision handed down by the Appointing Authority, clarifying that Presiding Officer Brownback, though the only lawyer on the panel, has no more authority in matters of law, than do the other two non-lawyer members of the commission. The Appointing Authority’s opinion compelled Brownback to withdraw his previous decision, which had appeared to afford his legal views greater weight.

Then Lt. Cmdr. Swift got up to argue that the commission as presently constituted with only three panel members and no alternates was in violation of the military commission order. This came out of his earlier challenges to certain panel members’ ability to serve impartially on the military commission. In response to his allegations of the appearance of bias of some of the members, the Appointing Authority struck two panel members and the alternate. Ironically this put Swift and his client in a worse position. Before the prosecution had to convince four commission members, now only two needed convincing. Swift was now in the extraordinary position of arguing that the two members he had wanted stricken should perhaps be reinstated. Swift asked that the commission certify the issue for the Appointing Authority to decide.

“We are going to take an indefinite recess”

It was in the next moment that the proceedings – which were just beginning to seem routine – became anything but. A soldier handed Presiding Officer Brownback a note. After reading it Brownback then stated blandly: “We are going to take an indefinite recess.” The three members exited the room quickly while everyone else was left looking quizzically at one another wondering, “What’s going on?” Then the word rippled through the room, “the federal court stopped the commissions... the federal court stopped the commissions!”

Ironically, the lawyers, we NGO representatives, and the press stuck here in Guantanamo – all under the constraints of security with limited access to any computer – felt as though we were the last to read the federal court’s actual decision. Although Hamdan’s case had been before the military commission, Hamdan’s lawyers had also challenged his detention in a separate case in federal court and attacked the commission’s legality from outside. After the commissions recessed, we were driven to the press building (about 5 minutes drive from the courtroom) and after a time given Judge James Robertson’s 45-page decision. Judge Robertson’s order and decision granted Hamdan’s request in part, most significantly stopping the military commissions.

Judge Robertson’s Order and Decision

Judge Robertson’s order and decision state five important things, directly contradicting the President’s and administration’s positions:

The Geneva Conventions applied to the conflict in Afghanistan and to all people in the conflict;
The combatant status review tribunal (established by the Pentagon after the Supreme Court’s ruling against the administration last summer) is not a competent tribunal for determining Hamdan’s prisoner-of-war (POW) status under the Geneva Conventions;
Unless and until a competent tribunal determines that Hamdan is not a POW, he is entitled to be tried under the same justice system that U.S. soldiers are afforded;
Even if Hamdan is not a POW he may not be tried before any military commission until the rules are amended so as to be consistent with the Uniform Code of Military Justice (UCMJ) – the federal laws governing trials for U.S. soldiers; and
Hamdan must not be held indefinitely in solitary confinement and should be returned to the rest of the detainee population.
First, the decision is a stark repudiation of the military commissions and the President’s pronouncement that the Geneva Conventions do not apply to suspected al Qaeda members captured in Afghanistan. President Bush had asserted a since-leaked February 7, 2002 memo that the Geneva Conventions did not apply to al Qaeda members and that Taliban members were not prisoners of war under the Geneva Conventions. This pronouncement undergirded all of the legal analysis coming out of the White House supporting interrogation methods amounting to torture and other abuse.

What Hamdan’s lawyers and organizations like Human Rights First have been arguing for a long time is that the Geneva Conventions doapply to the conflict in Afghanistan because Afghanistan had been a party to the treaty. Moreover, jettisoning the Geneva Conventions ignores a history in which the United States has always applied the protections of the Geneva Conventions, to the Viet Cong, in Somalia, and in the 1991 Persian Gulf War. The decision makes clear that the Geneva Conventions do in fact apply to those hostilities in Afghanistan in at least late 2001.

In addition, Judge Robertson’s decision is also a clear statement that the Combatant Status Review Tribunals (CSRTs) do not reach the level of a competent tribunal as envisioned by Article 5 of the Geneva Conventions and the military’s own regulations. Human Rights First and others have argued that under binding law, only a competent tribunal, as described in Article 5 of the Geneva Conventions, can make the determination about an individual’s status.

As Judge Robertson states succinctly: “The President is not a tribunal.” In other words, it’s not for the President to determine as a general matter than neither Hamdan nor any vast category of detainees can be deprived of Geneva Convention protections; that determination can only be made on a case-by-case basis, by a tribunal set up to hear the facts, and apply the law. Indeed, military regulations are structured so as to implement Article 5 of the Geneva Conventions, setting forth clear procedures for determining the status of a detainee. The CSRTs, in contrast, ask only whether a detainee is an enemy combatant or not (a term with no clear meaning under the Geneva Conventions) – and they come only now, thousands of miles and years removed from the facts of capture on the ground.

The court further made clear that even if Hamdan is found not to be a POW, he still cannot be tried before the military commission as presently constituted. Judge Robertson found that the military commissions were fatally flawed because they were “contrary to or inconsistent” with the procedures in the UCMJ. In particular, the military commission allowed for great amounts of evidence to be kept from Hamdan and all other defendants, under the vague and broad term “protected information.” The UCMJ does provide for the creation of military commissions, but not commissions, like those underway at Guantanamo, that so deviate from the basic fairness rules of the UCMJ.

Finally – and perhaps most important – Judge Robertson recognized the importance of ensuring that Hamdan be removed from Camp Echo (where he had been held in psychologically debilitating solitary confinement for almost one year) and returned to the area of Camp Delta where other detainees are held.

What Next?

Lt. Cmdr. Swift told us that he had given the good news to Mr. Hamdan and that he was very excited about the prospect of getting a fair trial. Neither Swift nor Neal Katyal would say what he thought this decision meant for the some 550 other detainees held at Guantanamo and the few awaiting trial. But I expect it to have significant effects, precipitating similar petitions by all of those detained here. Of course the government has already stated it will appeal the decision and seek a stay, advancing the same arguments it has made about commander-in-chief powers since it began designating individuals “enemy combatants” in 2002.

Today was a stunning day – one in which the rule of law really did prevail and a judge’s reading of international law protections and the Uniform Code of Military Justice in Washington, D.C., helped put at least a temporary halt on this extraordinary process – the military commissions, over hundreds of miles away in Cuba. The decision is just one of many in which the courts have held that the President cannot act beyond his constitutional powers and ignore the roles of Congress and the Court. For the time being, things are shutting down here at Guantanamo, and now I just have to see if I can get flight out of here.