Court OKs tribunal for terror cases


WASHINGTON - A federal appeals court ruled yesterday that the Bush administration's plan to convene military tribunals to try terrorism suspects detained at the U.S. naval base on Guantanamo Bay is constitutional, a decision that promises to jump-start a controversial and historic process that has been waylaid for eight months by legal challenges.

The unanimous decision by a three-court panel of the U.S. Circuit Court of Appeals for the District of Columbia reversed a lower court's ruling that the tribunals violated the Geneva Conventions. The Circuit Court concluded instead that the Bush administration has the authority to bring Salim Ahmed Hamdan and three other detainees before tribunals, or military commissions, on war crimes charges.

The tribunals would mark the first time since World War II that prisoners of war and enemy combatants would be tried in a quasi-military court-martial setting.

The three judges also determined that the Geneva Conventions do not apply in prosecuting such captives in the war on terrorism because they belonged to organizations such as the Taliban and al-Qaida, which are not government entities or signatories to the conventions, which provide guidelines on how prisoners are to be treated.

"Needless to say," the court said, "al-Qaida is not a state and it was not a 'High Contracting Party'" that signed onto the Geneva Conventions. They added that "no one claims that al-Qaida has accepted and applied the provisions of the Convention."

Lawyers at the Department of Justice said that "this decision is a major win for the administration in the war on terror."

Lawyers for Hamdan, who is described by the Pentagon as one of Osama bin Laden's chauffeurs, signaled that they will appeal the ruling. The matter is likely to be carried up to the Supreme Court.

Neal K. Katyal, a lead attorney for Hamdan and a law professor at Georgetown University, called the ruling "contrary to 200 years of constitutional law." He added, "As many retired generals and admirals of our military have stated, the cavalier treatment of individuals at Guantanamo Bay, and the setting aside of the Geneva Convention in the military commission process, threatens our troops, our interests and our way of life."

"These issues demand finality, and we will be seeking appropriate review," he said.

It remained unclear yesterday whether the military will restart the tribunal process soon, or wait to see how a final appeal ends up - a process that could take another year. Air Force Maj. Michael Shavers, a Pentagon spokesman, said the Department of Defense "will not be speculating on the next steps."

Hamdan, a Yemeni, has maintained that he was a mechanic with only a fourth-grade education who left home for Afghanistan to find work. There, he obtained a car and was employed as a driver for bin Laden, the al-Qaida leader, from 1996 until U.S. troops invaded Afghanistan after the Sept. 11 attacks.

His lawyers maintain that he merely wanted to send money home to his family and that he never embraced al-Qaida's violent ideology or conspired to harm others.

He was captured by Afghan military forces in late November 2001, turned over to the U.S. military and taken to the Guantanamo Bay prison.

In July 2003, Bush determined that "there is reason to believe" that Hamdan was a member of al-Qaida or was "otherwise" involved in terrorism against the United States. He was designated for trial before a military commission.

In contrast, many other detainees have been characterized as Taliban foot soldiers and, as of this spring, 232 have been released without being tried.

But Hamdan was considered a major catch, and a year ago - on July 13, 2004 - the man with six aliases was charged with "offenses triable by a military commission." The offenses included terrorism, murder, attacking civilians and destroying property.

According to the government, Hamdan knew that bin Laden and his associates were behind the attacks on two U.S. embassies in Africa and on the USS Cole off the shore of Yemen, as well as the airplane hijacking operation of Sept. 11.

Prosecutors said he delivered weapons and ammunition to al-Qaida members and associates, transported weapons from Taliban warehouses to al-Qaida, and was bin Laden's driver in convoys in which bodyguards carried Kalashnikov rifles and rocket-propelled grenades.

They also allege that he received weapons training at al Farouq camp in Afghanistan.

His tribunal was in its early pretrial stages in Guantanamo Bay when it was halted in November after U.S. District Court Judge James Robertson of Washington ruled that tribunals were illegal and violated military law and the Geneva Conventions.

That ruling was reversed by the appellate judges. In addition to finding that the Geneva Conventions do not apply, they also determined that the tribunals were properly set up the White House, authorized by Congress, and should go forward. But the legal jockeying won't end there.

The high court ruled last year that detainees should be given some kind of due process but was vague about what type. If the Supreme Court agrees to hear the case, it will have the opportunity to spell out how prisoners in the war on terrorism should be tried.

Kristine Huskey, a Washington lawyer who helps represent 11 Kuwaitis imprisoned at Guantanamo Bay, said the matter will be closely watched by her and the other attorneys representing some 130 of the Guantanamo Bay detainees. All of them, she said, are growing weary of not having their day in court and increasingly suspicious that the tribunal process is stacked against them.

"It is not, by far, a procedure that anybody is happy with."

Like Huskey, Eugene R. Fidell, director of the National Institute of Military Justice, said the Supreme Court will likely have the final say.

But regardless of how the legal wrangling turns out, Fidell said, yesterday's ruling "is still a victory for the government."

The Los Angeles Times is a Tribune Publishing newspaper.

Copyright © 2020, The Baltimore Sun, a Baltimore Sun Media Group publication | Place an Ad