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Judge Thwarts Guantanamo Tribunals; Rights Groups Cheer

by Jessica Azulay

Human and civil rights groups hail a federal judge's decision that the Bush administration cannot designate a prisoner as an "enemy combatant" just to deny him POW rights.

Nov. 9, 2004 – A federal judge yesterday threw a wrench into the Pentagon’s plans to try detainees held at the Guantánamo Bay military prison. In a landmark ruling, hailed by civil and human rights groups, US District Judge James Robertson said that the Bush administration had overstepped its authority when it designated Salim Ahmed Hamdan as an "enemy combatant" instead of a prisoner of war.

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"We are thrilled by this ruling," said Michael Ratner, president of the Center for Constitutional Rights, in a press statement. "The refusal of the Bush Administration to apply the Geneva Conventions was a legal and moral outrage." Ratner’s organization has been at the forefront of the legal fight to provide constitutional and international legal rights to the detainees held at Guantánamo.

The ruling came as the military tribunal by which Hamdan was to be tried had just begun the day’s pre-trial arguments.

At issue was the Bush administration’s designation of the Guantánamo detainees as "enemy combatants," a label the administration claims exempts the prisoners from protections granted by the Geneva Conventions. Whereas prisoners of war have specified rights under the Convention, the rights of so-called "enemy combatants" are not addressed. Rights groups have long contended that the proper determination for the detainees is "prisoners of war" and have accused the Bush administration of playing a semantics game in order to circumvent international law.

Judge Robertson’s ruling disregarded the government’s assertion that the US President can decide who is and who is not a prisoner of war. Instead, Robertson found that a "competent tribunal" must be convened to determine the matter and that unless such a commission decides Hamdan is not a prisoner of war, he must be afforded all relevant rights of a person protected by the Conventions.

Robertson’s ruling effectively ended Hamdan’s military trial until his status is determined or until the government agrees to try him under rules consistent with the Military Uniform Code of Justice.

Responding to Robertson’s decision, the Justice Department promised to seek a stay of the ruling and to file an appeal. "We vigorously disagree with the court's decision," said Mark Corallo, a Justice Deparment spokesperson. "We believe the president properly determined that the Geneva Conventions have no legal applicability to members or affiliates of Al-Qaeda, a terrorist organization that is not a state and has not signed the Geneva Conventions."

But Robertson rejected that argument. "Notwithstanding the President’s view that the United States was engaged in two separate conflicts in Afghanistan," he wrote in his decision, "the government’s attempt to separate the Taliban from Al-Qaeda for Geneva Convention purposes finds no support in the structure of the Conventions themselves, which are triggered by the place of the conflict, and not by what particular faction a fighter is associated with."

The scope of the decision as it pertains to other detainees to be tried under the military tribunal system designed by the Bush administration is unclear, but it is another severe blow to a structure already suffering under the weight of heavy national and international criticism.

So far only a handful of the more than 500 detainees still held at the base have been charged with war crimes and singled out to stand trial. The rest remain incarcerated without charges. In addition to the few military trials starting to get underway, the government has been conducting "enemy combatant status review tribunals" in an attempt to comply with a summer Supreme Court ruling that said the detainees must be allowed to challenge their detention in US courts.

Human and civil rights groups have been observing the military hearings and have issued numerous criticisms and concerns over the competency of judges, the inaccuracy of translations, the consideration of secret evidence and hearsay, rules said to favor the prosecution and inadequate resources given to defense teams.

Writing from Guantánamo where he was observing Hamdan’s military tribunal on behalf of the American Civil Liberties Union, Jamil Dakwar, an ACLU staff attorney wrote: "My first reaction to the halt of the Military Commission proceedings by the federal court was that this is the real judicial review in play. After reading the whole decision, a sense of relief and satisfaction captured all of us (observers on behalf of ACLU, Amnesty, Human Rights Watch and Human Rights First).

"We felt that this decision was long overdue and is a victory to the rule of law, international law and particularly to the Geneva Conventions, which have been sidelined and undermined by the US. government. Although the decision was given only in Hamdan’s case by the District Court in Washington (and will likely be subject to an appeal), its practical ramifications should go beyond this individual case to encompass and expose the travesty of the whole situation here in Guantánamo."

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The NewStandard ceased publishing on April 27, 2007.


Jessica Azulay is a staff journalist.

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