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10-11-04, 10:27
Tribunals DerailAs Judge Invokes Geneva Convention

November 9, 2004; Page A2

GUANTANAMO BAY, Cuba -- A federal judge ruled the Geneva Conventions protect prisoners captured in Afghanistan and that suspected terrorists can't be tried before military commissions that deny defendants the right to see evidence against them.

The order stunned military officials here and halted a hearing under way for Salim Hamdan, a Yemeni who admits serving as Osama bin Laden's driver but denies involvement with terrorism.

The decision by District Judge James Robertson in Washington applies to Mr. Hamdan but implicates all detentions at this remote naval base, now housing about 550 prisoners. The Justice Department said it would seek an emergency stay to enable proceedings to resume while it appeals. "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," a Justice Department spokesman said.

Minutes before Judge Robertson issued his ruling, lawyers for another commission defendant, accused al Qaeda paymaster Ibrahim al-Qosi, had filed a similar petition in federal court in Washington contending that the military commission is illegal. The suit also claims Mr. Qosi, a 44-year-old from Sudan, has been subjected to "a pervasive atmosphere of fear, intimidation and humiliation." The Defense Department didn't have an immediate response to the Qosi suit.


After the war on terror began in late 2001, Bush administration officials debated whether the U.S. should deviate from following the Geneva Conventions -- a 1949 treaty establishing basic rights for soldiers and civilians during armed conflict. Secretary of State Colin Powell had urged against such a policy change in early 2002, but Mr. Bush sided with White House Counsel Alberto Gonzales, who advised that the war on terrorism rendered much of the treaty "obsolete."

In November 2001, President Bush signed an order authorizing military commissions to try suspected terrorists for war crimes, promising "full and fair" trials but denying them several due-process rights afforded in both civilian courts and courts-martial. In February 2002, Mr. Bush issued a blanket finding that no prisoners captured in Afghanistan would have Geneva Convention protections, such as freedom from coercive interrogations and the right, if prosecuted, to the same type of proceeding that would be used against U.S. soldiers.

Bush administration lawyers envisioned Guantanamo Bay as an offshore prison where such foreign captives could be interrogated, tried and punished outside both the federal court system and the Geneva Conventions.

In his 45-page opinion, Judge Robertson rejected the government's position that the president, as commander in chief, inherently holds "untrammeled power to establish military tribunals" without specific authorization from Congress. The judge also dismissed the administration's claim that the Geneva Conventions had no force in the Afghan conflict because it was conducted against a terrorist organization and its allied militia, rather than a conventional army.

"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 Conventions to Americans captured during armed conflicts abroad," wrote Judge Robertson, a former Navy officer. "Other governments have already begun to cite the United States' Guantanamo policy to justify their own repressive policies."

Specifically, the judge ruled the Geneva Conventions "are triggered by the place of the conflict, and not by what particular faction a fighter is associated with." Since Afghanistan is a party to the treaty, combatants within its territory could be stripped of protections only through procedures the treaty itself provides. None had been followed for Mr. Hamdan, so he was entitled to be treated as a prisoner of war, the judge wrote. The judge also ruled the Bush administration's military commission violated the convention, since it offers a lesser degree of rights to enemy prisoners than those that would be afforded to U.S. soldiers facing trial.

The order bars proceedings until Mr. Hamdan's POW status is properly determined and military-commission rules are amended to comply with provisions of the Uniform Code of Military Justice.

Mr. Hamdan, 34, "was ecstatic that Judge Robertson would stand by him in his demand for a fair trial," said his Pentagon-appointed defense attorney.