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Homeland Security

09 November 2004

Judge Rules that Guantanamo Trial Violates U.S., International Law

Halts pre-trial hearing of Bin Laden driver

By Alexandra Abboud
Washington File Staff Writer

Washington -- A federal judge in Washington ruled November 8 that the Bush administration violated the U.S. Constitution and the Geneva Conventions by forming military commissions to try detainees at the U.S. Naval base in Guántanamo Bay, Cuba.

Judge James Robertson of the United States District Court in Washington halted the military commission's pre-trial proceedings against Salim Ahmed Hamdan, a driver and bodyguard of Osama Bin Laden, ruling that the Department of Defense tribunal that the government used to determine the enemy combatant status of the defendant, a tribunal at which the defendant's lawyer was not in attendance, was not a "competent" tribunal because it offered insufficient protection of the defendant's rights. According to the ruling, the military commission trial must be halted until the status of the detainee is properly decided.

In response to the ruling, Justice Department spokesman Mark Corallo said that government officials "vigorously disagree with the court's decision" and that the U.S. government would seek an emergency stay of the judge's ruling and would immediately appeal.

Under the Geneva Conventions, a detainee with prisoner-of-war status is afforded specific legal guarantees that do not apply to enemy combatants, such as trial by court martial, a process that guarantees the defendant more rights than if tried by military commission. The judge ruled that the detainee may not be tried by military commission unless "a competent tribunal determines that the petitioner is not entitled to protections afforded prisoners of war under Article 4 of the Geneva Convention."

According to Corallo, however, "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." He continued, "We also believe that the president's power to convene military commissions to prosecute crimes against the laws of war is inherent in his authority as commander in chief of the armed forces."

If Hamdan is determined to be a prisoner of war under the Geneva Conventions, he will be entitled to trial by court martial and will have the right to appeal any decision to the Supreme Court of the United States. Although the judge's ruling applies only to the current defendant, it could possibly extend to all detainees if the ruling is upheld.

(The Washington File is a product of the Bureau of International Information Programs, U.S. Department of State. Web site:

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