Court Rules Military Panels to Try Detainees
Osama Bin Laden's Driver Can Now Stand Trial

By R. Jeffrey Smith
Washington Post Staff Writer
Saturday, July 16, 2005

A federal appeals court yesterday backed the Bush administration's plan to let special panels of military officers conduct trials of terrorism suspects detained in the U.S. military prison at Guantanamo Bay, Cuba, overturning a lower-court decision that has blocked the "military commissions" for the past eight months.

The decision clears the way for the Defense Department to use the commissions to try some of the hundreds of detainees at Guantanamo Bay. It was hailed by Attorney General Alberto R. Gonzales yesterday as affirming the president's "critical authority" to determine how to try detainees deemed "enemy combatants" in the war on terrorism.

The ruling was an important test of the government's strategy of denying such detainees access not only to civilian courts but also to the more formal proceedings of military courts-martial, in which they would enjoy additional rights and legal protections. One of the judges on the deciding panel from the U.S. Court of Appeals for the District of Columbia Circuit, John G. Roberts, is said to be on the administration's list of possible Supreme Court nominees.

The decision followed an appeal by the Justice Department of a district court decision last November that had blocked a military commission trial of Salim Ahmed Hamdan, 34, a Yemeni mechanic with a fourth-grade education who admits that he served as Osama bin Laden's driver. Hamdan has been detained in Guantanamo Bay for the past 17 months and accused of being a member of al Qaeda. Three other detainees have been designated to stand trial before military commissions.

The lower court had concluded that Hamdan and others at Guantanamo Bay are entitled to hearings in advance of a criminal trial in which military officers would decide whether they qualified as prisoners of war. This procedure is required by the Geneva Conventions, the international treaties that protect people detained by military forces.

Prisoners of war are supposed to be tried in courts-martial rather than by the less formal military commissions. Hamdan, who has claimed that he took his job solely for money and not for ideology, has sought a court-martial. But the administration has vigorously sought to avoid courts-martial, which have rules that make it more difficult to keep defendants from knowing all the evidence against them.

The appellate court swept aside the lower court's decision in what amounted to a general endorsement of a legal theory that the president has broad powers under the Constitution to decide how military detainees are to be handled during a time of conflict.

"On the merits, there is little to Hamdan's argument" that the president's establishment of the commissions illegally tramples the prerogatives of Congress, the three-member panel said in a decision written by Judge A. Raymond Randolph and joined by Roberts and Senior Judge Stephen F. Williams.

The panel said courts should defer to President Bush's decision in 2002 that the Geneva Conventions do not apply to detainees Bush declares as enemy combatants and that, in any event, the conventions are not enforceable by U.S. courts in lawsuits brought by foreigners.

"This decision is a major win for the Administration," a Justice Department news release said. The Defense Department itself declined to comment.

Hamdan's lead civilian counsel, Georgetown University professor Neal Katyal, denounced the decision as "contrary to 200 years of constitutional law." He said it "places absolute trust in the president, unchecked by the Constitution, statutes of Congress and longstanding treaties." He added that it undermines the protections of the Geneva Conventions in ways that could harm U.S. interests in the future.

Katyal expressed particular concern over what he described as the panel's conclusion that the president can "set up an entire architecture of justice as he sees fit," and that under the military's rules for the commissions, those on trial could be forced to leave the room while the proceedings against them continue. Noting that he has not even been allowed to speak to his client, Katyal said the decision will be appealed.

The legal battle, being waged on terrain scarcely visited by U.S. courts in the past century, has been closely watched by human rights advocates, legal scholars, British and European Union parliamentarians, and current and former military lawyers -- including many who submitted their own briefs.

Passions on both sides have run high. The Justice Department argued in April that if the commissions are not allowed to go forward, security breaches could result and the war on terrorism could be slowed.

Hamdan's military lawyer, Navy Lt. Cmdr. Charles Swift, last year denounced the commission set up to try him as a "kangaroo court." Seven retired senior military officers and lawyers warned in a joint statement that if the commissions are allowed to proceed unchecked, foreign tyrants will organize similar court hearings for U.S. military personnel and "hide their oppression under U.S. precedent."

A group of 305 current and former European politicians, who asserted that they span "the political spectrum," said in their court brief that letting the commissions proceed as planned would place the United States in breach of international law and undermine the due process rights of individuals affected by the war on terrorism.

The new ruling is the first in which the administration's plan for using military commissions to conduct criminal trials has been reviewed at the appellate level. It carries less weight than if it had come from a full appellate court.

Researcher Julie Tate contributed to this report.

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