The frequently-troubled sytem set up by Congress last year to try war crimes charges against Guantanamo Bay detainees is facing another potential obstacle in the wake of a military judge’s ruling at Guantanamo on Monday.  Military Commission Judge Keith J. Allred, a Navy captain, ruled that Salim Ahmed Hamdan is entitled to a hearing on whether he is to be classified as a prisoner of war. (The judge’s four-page order can be found here.)

If, in fact, the judge were to conclude after the hearing that Hamdan is a POW, under the terms of the Third Geneva Convention, it almost certainly would mean that he could not be tried by a U.S. military commission.  Article 102 of the Convention declares that a POW cannot be punished for a crime unless that results from the same procedure that a U.S. serviceman would face for a criminal military trial — that is, by court-martial under a system of military justice that provides the accused with greater rights than are provided under the Military Commissions Act of 2006.

Hamdan, who already has won a major ruling by the Supreme Court on his rights as a detainee, and who earlier won a dismissal of the war crimes charges (a dismissal that has not yet been finalized), sought a ruling from Judge Allred that he is protected by the Third Geneva Convention’s Article 5.

Article 4 of the treaty defines who is a prisoner of war. Article 5 then specifies that, if there is any doubt whether a person captured for “a belligerent act” is a POW, that means they must be treated temporarily as a POW until that status is settled. And, if a POW determination is then made, Article 102’s protection on where and how charges may be tried takes effect.

Judge Allred — the same judge who earlier dismissed the war crimes charges against Hamdan (only to be overturned, at least temporarily, by the U.S. Court of Military Commission Review) — concluded Monday that Hamdan’s lawyers had satisfied the requirements to get an Article 5 hearing. That proceeding, the judge added, will be before the military commission itself, since he found that to be a “competent tribunal” under Article 5.

The Justice Department, in resisting Hamdan’s plea for a Geneva Convention hearing, contended that he was not entitled to it under the Military Commissions Act and, in any event, the status requirement was satisfied by the finding of a Combatant Status Review Tribunal that he is an “enemy combatant.”

Rejecting both of those arguments, the military judge concluded that the U.S. is bound by Article 5, and that it does apply to Hamdan because the U.S. as a detaining power under the Convention “proposes to try the accused for his participation in hostilities.”

The judge went on to decide that the CSRT determination was not sufficient to answer the plea for a Geneva Convention status determination. That must be made by a judicial tribunal, and CSRT was not set up to be that kind of tribunal, the judge found.

The CSRT found him to be an “enemy combatant,” Judge Allred noted, because he was a member of al-Qaeda and worked for Osama bin-Ladin as a bodyguard and driver.  But, the decision added, “the CSRT did not address his entitlement to Prisoner of War Status, cite or discuss the Geneva Conventions or Article 5, or address the lawfulness of the accused’s participation in hostilities.”  Indeed, the judge said, the CSRT was not “tasked to” do anything other than determine whether he was an “enemy combatant.”

Thus, the judge found, it is up to him and the military commission over which he presides to address the POW question.

When the commission holds a hearing on whether Hamdan is an “unlawful enemy combatant,” a decision the commission was assigned to do by the Court of Military Commission Reivew, it will also go into Hamdan’s status under Article 5 — that is, whether or not he is a POW.

Although the Military Commission Act provides that those covered by it cannot rely upon the Geneva Convention “as a source of rights,” Judge Allred said that Hamdan has not yet been determined to be an “unlawful enemy combatant” — the status he must be assigned in order to bring him under the MCA.

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