History Forum / General / British History / July 2008

DSH
Lux et Veritas et Libertas
Vires et Honor

U.S. judge approves first trial of a Guántanamo Bay detainee

By Scott Shane and William Glaberson Published: July 17, 2008
The International Herald-Tribune

A U.S. judge on Thursday refused to postpone the first military trial set
for next week at the Guantánamo Bay detention center, rebuffing a
last-minute plea from lawyers for Salim Hamdan, an accused member of Al
Qaeda and the former driver of Osama bin Laden.

Judge James Robertson, of U.S. district court in Washington, ruled that
Hamdan's claims that the military commission he faces is unconstitutional
can be appealed to a civilian court only after his military trial is
completed.

The ruling clears the way for the start of the first trial of a detainee at
the prison complex in Cuba, opened in 2002 to hold prisoners captured in the
campaign against terrorism. The trials have been delayed for years, in part
by courts that found legal fault with the commissions created to try people
designated by the government as "unlawful enemy combatants."

It was Judge Robertson who ruled in 2004 that the original procedures set
for military commissions by President George W. Bush were inadequate, a
finding later upheld by the Supreme Court. In response, U.S. Congress in
2006 passed the Military Commissions Act, setting up new procedures for the
trials.

On Thursday, after hearing two hours of arguments from lawyers for Hamdan
and the government, Judge Robertson said the congressional action was
sufficient to permit the trial to begin.

"Hamdan is to face a military commission designed by Congress under
guidelines laid down by the Supreme Court," the judge said.

Judge Robertson noted that his ruling applies only to the case of Hamdan and
is not binding on the many other Guantánamo cases pending before other
judges. He also did not rule on what he said was a central question, the
constitutionality of a provision of the Military Commissions Act that
permits only limited appeals by Guantánamo detainees to a single court, the
United States Court of Appeals for the District of Columbia.

The ruling came after two hours of arguments from lawyers for Hamdan, Neal
Katyal and Joseph McMillan, and a deputy assistant attorney general, John
O'Quinn.

Hamdan's attorneys argued that to proceed with the military trial now would
irreparably injure Hamdan, because the "rulebook" governing such novel
trials is uncertain and because testimony based on hearsay and coercive
interrogation methods will be allowed.

"At a minimum, Hamdan deserves his day in court - this court," Katyal said.

O'Quinn replied that the rulebook for the military trials is laid out in the
law passed by Congress, and that any challenge from Hamdan should come only
after his trial is over.

Judge Robertson, appointed by President Bill Clinton in 1994, is known not
only for his earlier ruling in the Hamdan case but for resigning in late
2005 from the Foreign Intelligence Surveillance Court, which oversees
eavesdropping by the National Security Agency.

His resignation was widely viewed as a protest against Bush's decision to
bypass the special court after the 2001 terrorist attacks and to permit
eavesdropping without warrants against people in the United States suspected
of terrorist ties.

At Guantánamo Bay, a military court pressed ahead, as Hamdan's chief
military defense lawyer, Lieutenant Commander Brian Mizer, mentioned that
the defense team had worked for years to vindicate what it has claimed are
Hamdan's fundamental rights.

Court officials have said that they plan to assemble a panel of military
officers - a military style of jury - in Guantánamo on Saturday. The first
proceedings in the trial could be held Monday.

This Wednesday and Thursday the military judge in the case, Captain Keith
Allred, issued two rulings that rejected central constitutional arguments of
the defense, which had hoped that the Supreme Court's June ruling in the
case of Boumediene v. Bush had conferred broad constitutional rights on the
detainees in Guantánamo.

In his ruling on Wednesday, Judge Allred seemed to acknowledge that the
Supreme Court's decision did give detainees a right to raise constitutional
questions in the military courts here, which would be a major departure from
the position of the military prosecutors. But, Judge Allred quickly then
rejected the particular constitutional claim the lawyers had advanced in one
of their legal challenges.

In the ruling, Judge Allred rejected the defense claim that the charges
against Hamdan were improper, claiming that they had been enacted
retroactively at a time when Hamdan was already in custody at Guantánamo.
The defense claimed that was a violation of the provision of the
Constitution saying Congress cannot enact such ex post facto laws.

But Judge Allred found that the illegal conduct alleged in charges against
Hamdan, conspiracy and providing material support to terrorism, were long
barred by the international law of war. He noted that in its 2006 Military
Commissions Act, Congress explicitly said that the law enacted to prosecute
Guantánamo detainees "does not establish new crimes."

Defense lawyers said they were encouraged because Judge Allred's decision
appeared to acknowledge for the first time that lawyers for a detainee could
raise such constitutional questions. But any encouragement for the defense
was quickly dashed.

A decision in Hamdan's favor would have required the dismissal of the war
crimes charges against him. Instead, Judge Allred said he saw no violation
of the constitution in the charges. "The commission," he wrote, "is inclined
to defer to Congress's determination" that the charges were not new
offenses, but were simply defining illegal conduct.

While the court was proceeding Thursday, court clerks released a second
ruling that rejected a central defense claim. Hamdan's lawyers asserted that
the detainee's constitutional right to equal protection of the laws was
violated because only aliens - not American citizens - can be prosecuted for
war crimes in Guantánamo.

Judge Allred also quickly rejected that claim in a six-page decision. He
noted that the Supreme Court's ruling in June giving the detainees rights to
file habeas corpus suits was limited and that the court suggested a
practical analysis of other constitutional questions at Guantánamo.

He concluded that military commission trials afford detainees many legal
protections, including legal representation, the right to be found guilty
only by evidence beyond a reasonable doubt and the right to a public trial.

"In light of this substantial array of privileges and protections accorded
to Hamdan," he wrote, "the commission does not find that the Equal
Protection Clause needs to apply at Guantánamo Bay to prevent injustice."

Scott Shane contributed from Washington and William Glaberson from
Guantánamo Bay.