A federal judge has ruled that the Bush administration exceeded constitutional authority – and ignored the Geneva Conventions – when it set up military commissions to try terror suspects held at Guantanamo Bay. The decision is an important step in sorting out the status of so-called illegal combatants.
The administration claims that Judge James Robertson’s ruling would give terrorism the same legal status as legitimate methods of waging war and plans to appeal the decision. The ruling applies only in the case of Salim Ahmed Hamdan, a former driver for Osama bin Laden, but could have far-reaching impact if upheld. The government might have to court-martial the detainees or eventually repatriate them.
Robertson’s decision was “very solid that the Geneva Conventions do apply to these people,” said Kevin Barry, a retired Coast Guard judge and military law expert. “The presumptive rule is that a person who falls into the hands of the enemy on a battlefield is presumed to be a prisoner of war and must be accorded that status unless and until a different status is established.”
More than 500 detainees, including suspected al-Qaeda members and Taliban captured in Afghanistan almost three years ago, are being held at the U.S. naval base in Cuba.
Robertson, a district judge in Washington, ruled that the detainees may be prisoners of war under the Geneva Conventions and that Hamdan, a 34-year-old Yemeni captured in Afghanistan, couldn’t be tried before the military commissions set up shortly after the Sept. 11 terrorist attacks. Military commissions have not been used since World War II.
Hamdan could only be tried by court-martial, the judge said. (POWs are subject to the Uniform Code of Military Justice.) Under Article 5 of the conventions, Hamdan must be treated as a POW unless a special tribunal determines otherwise, he said. Also, Robertson noted that commissions wouldn’t give defendants a fair opportunity to respond to charges because some classified evidence would be withheld, which conflicts with the right to confront accusers.
Robertson disagreed that President Bush had power to declare the detainees unlawful combatants, holding that only an Article 5 tribunal could do that. Hamdan had no such hearing.
(The government began holding a separate set of hearings at Guantanamo after the Supreme Court’s June ruling that the prisoners couldn’t be held indefinitely and could challenge detention in federal court.)
Robertson also noted that American troops captured in war might be endangered by a U.S. failure to comply with the Geneva Conventions.
Frankly, we’re troubled by the notion that individuals who wear neither uniforms nor insignia, but engage in armed combat or attack civilian targets, are entitled to the same status as regular soldiers. But that doesn’t mean they have no basic rights, either.
The fundamental issue, according to Barry, is that what the government tried to do would deny prisoners a fair trial, which conflicts with the rule of law. At so critical a time, it’s more important than ever that the United States faithfully follow all its laws and treaty obligations. It’s also crucial that any trials held mustn’t seem a sham to the rest of the world.