Hamdan trial to go forward
on Oct 18, 2007 at 11:09 am
A military judge at Guantanamo Bay ruled on Wednesday that the war crimes case against a Yemeni national, Salim Ahmed Hamdan, will resume with a hearing Nov. 9 at the U.S. Naval base in Cuba. The first issue will be whether the government has sufficient evidence to classify Hamdan as an “unlawful enemy combatant” — a finding that is necessary before he can be tried on aid-to-terrorism charges.
Navy Captain Keith J. Allred, in a five-page ruling on Wednesday (found here), refused to postpone the Hamdan case any further. Allred is the presiding judge of a military commission that has been designated to try Hamdan on charges of conspiring to aid terrorism — including serving as a bodyguard and personal driver for Osama bin Ladin — and of providing military support to terrorists in Afghanistan.
On June 4, Judge Allred dismissed the charges, concluding that the military had not found Hamdan to be an “unlawful enemy combatant”; a Combatant Status Review Tribunal had found him to be only an “enemy combatant,: and the judge found that would not give the commission jurisdiction to hold a trial.
The government asked the judge to reconsider and, after two rounds of new briefing, the judge did so. He relied in significant part upon a Sept. 24 ruling by the military’s highest war crimes court, the U.S. Court of Military Commission Review. Ruling in the case of another charged detainee, Omar Ahmed Khadr, the CMCR ruled that a military judge has the authority to make the decision as to whether a commission has jurisdiction by deciding — independent of any CSRT finding — whether the individual’s status should be deemed “unlawful.”
The CMCR, Allred noted, “held that military commission judges may hear the evidence and determine for themselves whether an accused is subject to the jurisdiction of a military commission.” Brushing aside defense lawyers’ complaints that a new status hearing by the judge would be procedurally difficult, Allred concluded that the case could go forward.
“The interests of justice are served by reopening the hearing” so that the judge may decide whether the commission trial may get underway. He granted the governments request to offer evidence about Hamdan’s “activities in Afghanistan and elsewhere” that would aid the ruling on status. The initial hearing will be only about that, Allred concluded; other issues — including Hamdan’s challenge to the authority of the commission to hold any trial — will be set for argument later, the judge found.
Hamdan, Khadr and two others have been charged with war crimes; one of those cases resulted in a guilty plea. Khadr’s trial on charges of murder for the death of a U.S. serviceman in Afghanistan is set to resume at Guantanamo on Nov. 8, one day before the Hamdan hearing., but Khadr’s lawyers may seek a postponement from the D.C. Circuit Court. Khadr has an appeal pending in the Circuit Court, seeking to get the charges dismissed.
So far, no commission trial has been held. Â The Pentagon has said that as many as 80 Guantanamo detainees may be charged and tried on terrorism charges.
