WASHINGTON, 16 July 2005 — A federal appeals court put the Bush administration’s military commissions for terrorist suspects back on track yesterday, saying a detainee at the Guantanamo Bay prison who once was Osama bin-Laden’s driver can stand trial.
A three-judge panel ruled 3-0 against Salim Ahmed Hamdan, whose case was halted by a federal judge on grounds that commission procedures were unlawful.
“Congress authorized the military commission that will try Hamdan,” said the US Court of Appeals for the District of Columbia Circuit.
The protections of the 1949 Geneva Convention do not apply to Al-Qaeda and its members, so Hamdan does not have a right to enforce its provisions in court, the appeals judges said.
US District Judge James Robertson ruled last year that a military commission could not try Hamdan until a competent tribunal determined that he was not a prisoner of war.
The appeals court said that ruling was wrong, and said the Geneva Conventions do not help Hamdan.
“One problem for Hamdan is that he does not fit the... definition of a ‘prisoner of war’ entitled to the protection of the convention,” Judge A. Raymond Randolph wrote in a 20-page ruling.
“Another problem for Hamdan is that the 1949 Convention does not apply to Al-Qaeda and its members.”
President Bush created the military commissions after the Sept. 11 attacks, opening a legal channel for alleged Al-Qaeda terrorists and their associates to be tried for war crimes.
Hamdan’s lawyers said Bush violated the separation of powers in the Constitution when he established military commissions.
The court disagreed, saying Bush relied on Congress’s joint resolution authorizing the use of force after the Sept. 11 attacks, as well as two congressionally enacted laws.
Just 15 of the 520 detainees at Guantanamo Bay have been designated for such trials and only four have been charged.
The rest face indefinite detention, and the Bush administration refuses to grant any of the detainees prisoner-of-war status, a decision that has fueled international criticism of the United States.
Hamdan, a mechanic with a fourth-grade education, says he left his home country of Yemen looking for work and wound up in Afghanistan, working for Bin Laden from 1997 until the US attack in Afghanistan in 2001.
Hamdan denies conspiring to engage in acts of terrorism and denies he was a member of Al-Qaeda.
Hamdan’s lawyers say he simply wanted to earn enough money to return to Yemen, buy his own vehicle and support his family as a driver.
Nearly all of the military-designated defence lawyers have said the tribunals are not legal and that Guantanamo inmates cannot receive a fair trial because of the way the tribunals are set up. The defendant may not hear all of the evidence produced against him if the tribunal decides it is classified.
Neal Katyal, a professor of law at Georgetown University in Washington, who has helped prepare Hamdan’s case, said the latest ruling “is contrary to 200 years of constitutional law” in the United States.
“It gives the president the raw authority to expand military tribunals without limit, threatening the system of international law and armed conflict worldwide.
“As many retired generals and admirals of our military have stated, the cavalier treatment of individuals at Guantanamo Bay, and the setting aside of the Geneva Conventions in the military commission process, threatens our troops, our interests, and our way of life.
