Judge Says Detainees' Trials Are Unlawful

Kevin Barry, a retired Coast Guard judge who is critical of the Pentagon's legal justifications for the Guantanamo Bay detentions, called Robertson's ruling a "remarkable" decision that "will give heart to all who think the rule of law should apply in the Afghanistan conflict." Barry said the war on terrorism is the first U.S. war since the Geneva Conventions' adoption in 1949 in which the government has not accorded POW status to enemy fighters.

"Even the Viet Cong, who were farmers by day and fighters at night, were accorded that status," he said. "The judge got these issues right."

The government has been under pressure since June to revise other facets of its strategy for handling the cases of the more than 500 Guantanamo Bay detainees. In a landmark ruling that month, the Supreme Court rejected the government's argument that the president may indefinitely hold and interrogate alleged al Qaeda and Taliban members captured on the battlefield without filing charges or providing them lawyers.

The court ruled that the detainees were entitled to hear the charges against them and challenge their imprisonment in U.S. federal courts. Nearly 70 have filed such challenges, called habeas corpus petitions, in federal courts here.

Since the Supreme Court ruling, the government has begun holding "combatant status review tribunals" at Guantanamo Bay for each detainee to determine whether he should continue to be held. The detainees do not have legal representation at those hearings. So far 317 hearings have been held and 131 cases have been adjudicated, all but one in favor of continued detention.

Douglass Cassel, director of the Center for International Human Rights at the Northwestern University School of Law, said he hopes the Bush administration reconsiders its overall strategy in light of the Supreme Court's June decision and Robertson's ruling yesterday.

"I hope the government sits back and says, 'This is a chance to regain the high ground in the court of public opinion,' " he said. "This decision is of enormous importance to the perceived commitment of the United States to the rule of law."

But Douglas W. Kmiec, a Pepperdine University law professor, called Robertson "sadly mistaken" for intervening in the case at this point. He said the judge should have postponed any ruling until the military commissions had completed their work.

Eugene R. Fidell, a Washington lawyer specializing in military justice, said it will be difficult for military commissions and status review panels to decide fairly whether a detainee is a prisoner of war, after top executive branch and military leaders have declared all of them enemy combatants, not POWs.

"That's where they got into trouble," Fidell said. "The people driving the train were not people familiar with the military justice system."