President Bush should be allowed to exercise his power to prosecute and punish al Qaeda terrorists for war crimes without intervention from U.S. courts, the Justice Department told a federal appeals court yesterday.
A government attorney made the arguments in appealing a ruling by a lower court last year that the military commissions created to prosecute suspected terrorists are inherently unfair to the accused and illegal under military and international law. Justice Department attorney Peter D. Keisler said yesterday that U.S. District Judge James Robertson's conclusions were wrong and he should not have ruled on the subject because the courts should give the president broad latitude to wage war against terrorism.
The case centers on the government's efforts to prosecute Salim Ahmed Hamdan, 34, an Afghan national, on charges of being Osama bin Laden's driver and an active member of his terrorist network.
Hamdan, who is at the U.S. military prison in Guantanamo Bay, Cuba, is one of the first detainees to face trial by the special military commissions last year. He has said that he drove trucks around bin Laden's farm but did not know about terrorist activity or participate in it.
His military attorney, Navy Lt. Cmdr. Charles Swift, sued the government last year, saying the military commission was a "kangaroo court" that defied long-established military law and denied his client rights guaranteed under international treaties.
At yesterday's hearing, the three judges on the panel of the U.S. Court of Appeals for the District of Columbia closely questioned attorneys for the government and Hamdan. They raised doubts about whether international treaties such as the Geneva Conventions apply in Hamdan's criminal prosecution, whether it is proper to remove Hamdan from portions of his trial and whether U.S. courts can rule on the commissions' fairness before a single trial has been held.
Robertson's November ruling halted the work of the military commissions at Guantanamo Bay, which had just begun.
Keisler said the commissions, unlike established military courts-martial, are justified in preventing the accused from hearing certain evidence and intelligence gathered in their case.
"We've never had a situation where protecting intelligence is more important than it is now," Keisler said.
Swift and fellow lawyer Neal K. Katyal said commission rules change constantly and are controlled by the military prosecutor who brings the charges.
"The law demands fairness, independence and competence, and none of those things can be said of the commissions," Katyal told the judges. Swift added that Bush has issued an order that concluded Hamdan is guilty, and military officers would jeopardize their careers by ruling otherwise.
"My client doesn't think he can get a fair trial under those circumstances," Swift said.