Potential new obstacle to Hamdan trial
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.
It is appropriate at this point to note that a civil habeas corpus proceeding with a hearing on the factual merits, followed by a criminal jury trial or full blown court martial of the Uniform Code of Military Justice, would be long over by now. It takes more time and more money to avoid due process than it does to follow it, and the ultimate result’s validity is less certain when one tries to cut corners. And, this is all putting aside the diplomatic, domestic political and military costs of the current system.
Comment by Andrew Oh-Willeke — December 18, 2007 @ 4:38 pm
This judge sounds like an ass.
Comment by Jacques MacKenzie — December 18, 2007 @ 5:22 pm
Why are some Americans so distressed at the prospect that our fundamental law, our Constitution, and our criminal law should be applied to those who we consider to be criminal combatants. I offer this for consideration: Hamdan, even if he is who the government says he is, may be only incrementally worse than John Wayne Gacy, Ted Bundy or Jeffery Dahmer? Why bother having a Constitution if we do not trust it?
Comment by James Meguerian — December 18, 2007 @ 9:52 pm
IMO the bottom line is that various judges and courts keep making rulings on this and rulings on that, but guys like hamdan remain exactly where Bush wants them.
That’s likely to continue, and it’s probably not a bad thing:
How can an enemy invoke the constitution?
His goal is to annihilate it …
In a state of war, courts and legal proceedings
are only for members of the same side, not the enemy.
- Robespierre
Comment by Stephen Jaros — December 18, 2007 @ 11:58 pm
I wonder if Robespierre thought of retracting that statement as he stood on the steps of the guillotine?
Comment by James Meguerian — December 19, 2007 @ 12:15 am
Read the opinion. The holding is merely that Hamdan is entitled to a hearing whether he is to be classified as an “unlawful enemy combatant.” Since Hamdan was apparently never enlisted in the armed forces of any sovereign state, that determination seems almost certain. Those who have already determined that Hamdan is a “bad guy” will almost certainly be vindicated anyway. Those who dispute the president’s untrammeled discretion to determine who is a “bad guy” by executive fiat will have established a precedent (all assuming that the U.S. Court of Military Commision Review does not reverse “Judge” Allred’s ruling). Hamdan still will be subject to the full rigors of ex post facto law, applied with no territorial jurisdictional limitations. The ironic thing is that Hamdan will almost certainly be convicted and punished in pursuit of the “war on terror” only with a fig leaf of due process to garnish the package. The kangaroo court is still in session.
Comment by David Graham — December 19, 2007 @ 8:01 am
I agree with the first poster, Mr. Oh-Willeke.
The U.S. had a golden opportunity to show the world just how different we were from our enemies, by trying those enemies in the light of day and according to our constitutional principles. It would have been over long ago.
But Bush and Cheney, et al. do not really believe in our Constitution and our justice system, because they don’t trust them to deliver the “correct” results. So they tossed everyone in a hole, with secret tribunals. Just like the good ol’ U.S.S.R.
Due process is easy to support when things are going smoothly. At a time when America needed to stand tall and stick to our guns, show the world what we’re really made of, we caved. It’s just a damn shame.
Comment by Harry Gower — December 19, 2007 @ 12:46 pm
Seriously? Quoting Robespierre? The author of the Terror in defense of (dubious) tactics to suppress terror? What’s next- John Locke on why liberties must be curtailed?
Comment by Roberta Armstrong — December 19, 2007 @ 2:32 pm
No, Robespierre did not think that. Robespierre had principles, unlike this judge.
Comment by Jacques MacKenzie — December 19, 2007 @ 3:04 pm
I’m sure you’re aware that Robespierre led the Reign of Terror. From this period came the French word ‘le terroriste’, as applied to Robespierre and like-minded Jacobins. In English, it became the word “terrorist.”
Comment by Kenneth Kraszewski — December 19, 2007 @ 7:06 pm
good argument to be made that his principles might be similar to our Vice President’s
Comment by James Meguerian — December 19, 2007 @ 7:31 pm
The Judge did not rule that the constitution requires a hearing in this case, he ruled that Congress required a hearing when it enacted the Geneva Convention by treaty. What Congress can do, it can undo. But it hasn’t, and for good reason. No Congress is going to deny a person the ability before a duly constituted court to claim that he/she should be treated as a prisoner of war, because if it did then our enemies would take the same position with out soldiers. How would the U.S. feel if one of its soldiers, in or out of uniform, was put on trial for murder because it shot an enemy in the course of a war? (and do you think that our soldiers always wear uniforms when they do surveillance on the ground in Syria/Iran/North Korea/etc.?) Our soldiers need to have due process rights to defend their actions as being legitimate wartime conduct, which requires that we give our enemies the same procedural rights. We did not execute German soldiers for murder (summarily or otherwise) because they killed American soldiers, and some of the people in Guantanamo seem to bein the same position. Many are not(in fact, the vast majority of them are probably simple criminals, not soldiers), but that is why we have hearings, to decide such issues.
Comment by Tom Shardlow — December 19, 2007 @ 9:19 pm