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Homeland Security

American Forces Press Service

Appeals Court Decision Clears Way for Military Commissions

By Kathleen T. Rhem
American Forces Press Service

WASHINGTON, July 16, 2005 A federal appeals court decision July 15 has cleared the way to allow enemy-combatant detainees held at Guantanamo Bay, Cuba, to be tried by military commissions.

The U.S. Court of Appeals for the D.C. Circuit overturned an earlier district court ruling that halted the military commission trial of Salim Ahmed Hamdan, who admitted to being a personal driver for terrorist leader Osama bin Laden and is alleged to be a member of al Qaeda and to have trained in terrorist camps in Afghanistan.

In November 2004, the U.S. District Court for the District of Columbia halted military commission proceedings against Hamdan. The court agreed with arguments from Hamdan's attorneys that he could not be tried by military commission unless a "competent tribunal" found him to not be a prisoner of war.

The appeals court found that the military commission proposed and put into place by the Defense Department under the Bush administration is such a competent tribunal. "We therefore see no reason why Hamdan could not assert his claim to prisoner of war status before the military commission at the time of his trial," Circuit Judge A. Raymond Randolph wrote in the court's majority opinion.

"The Department of Justice is pleased with today's ruling affirming that the president has the authority to establish military commissions to try and punish enemy combatants who have violated the laws of war," Attorney General Alberto Gonzales said in a July 15 statement.

The court also found that even if they agreed with the substance of Hamdan's argument, they would have overturned the circuit court's decision because of a question of proper jurisdiction.

"International treaties do no create judicially enforceable individual rights," Randolph wrote. The judges found that violations of international treaties are properly resolved through international negotiations, "not the subject of a lawsuit."

The appeals court chastised the district court for improperly finding otherwise in the original case.

The appeals court further found another problem for Hamdan's case: that the 1949 Geneva Convention on the treatment of enemy prisoners of war does not apply to members of al Qaeda. The court upheld the government's argument that the Geneva Conventions apply only in cases of wars between states or "High Contracting Parties" of the convention or in the case of civil war.

"Needless to say, al Qaeda is not a state, and it was not a 'High Contracting Party,'" Randolph wrote in the opinion. He went on to state that the war against terrorism in general and against al Qaeda in particular cannot be considered a civil war because it is international in scope.

"The president's authority under the laws of our nation to try enemy combatants is a vital part of the global war on terror," Gonzales said in his statement. He added that the appeals court decision "reaffirms this critical authority."

Afghan militia forces captured Hamdan, a Yemeni national, in Afghanistan in late November 2001 and handed him over to the U.S. military. He was transferred to Guantanamo Bay in early 2002. Military commissions trials are pending for three other enemy-combatant detainees at Guantanamo Bay.

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