Military judge: Hamdan may be tried
on Dec 20, 2007 at 11:30 am
A military judge at Guantanamo Bay, Cuba, ruled on Wednesday that a Yemeni national, Salim Ahmed Hamdan, is not a prisoner of war, but rather is an “unlawful enemy combatant” and may be tried on war crimes trials by a military commission. The judge also ruled that Hamdan has no constitutional rights, under D.C. Circuit Court precedent, and thus may not challenge his trial based on constitutional claims. (That precedent is now under review by the Supreme Court in Boumediene v. Bush, 06-1195, and Al Odah v. U.S., 06-1196.)
The ten-page decision by the military judge, Navy Captain Keith J. Allred, was released Thursday by the Pentagon. The text can be downloaded here. Hamdan’s defense lawyers, in a statement, noted their disappointment, and suggested that some parts of Judge Allred’s rulings in the Hamdan case may aid the legal challenges of other Guantanamo detainees. That statement is here.
Under the Military Commissions Act of 2006, Guantanamo prisoners may be tried for war crimes before military commissions if they are found to be “alien unlawful enemy combatants.” Judge Allred concluded that Hamdan met the definition for that status spelled out in MCA, based on the judge’s finding that Hamdan drove a vehicle to and toward a battlefield in Afghanistant where U.S. forces were engaged in 2001, and the vehicle contained surface-to-air missiles “that could only be used against the United States and its co-belligerents.” That made him an active participant in hostilies against U.,S. forces.
Allred did not reach other arguments that Pentagon prosecutors had offered to justify Hamdan’s eligibility for trial — that he was a personal driver and bodyguard for Osama bin-Ladin, continued to work for bin-Ladin after learning that bin-Ladin had directed attacks against U.S. forces and the 9/11 attacks, and drove bin-Ladin around Afghanistan after 9/11 in an effort to help him avoid detection and punishment.
Those arguments, the judge said, “may well provide grist for the debates of future generations of Law of Armed Conflict Scholars.” But Allred said they were not addressed, since Hamdan met the definition without them.
The judge went on to rule that Hamdan was not a “lawful enemy combatant,” either under any definition of that status spelled out in MCA, or under the Geneva Conventions. Further, the judge rejected a defense argument that Hamdan should be treated as a prisoner of war — a status that would have barred his trial before a military commission. He does not meet any of the definitions of POW under the Geneva Convention, the judge ruled. (An earlier post discussing the Geneva Convention issue in Hamdan’s case is here.)
The judge’s ruling appeared to have been made by him acting as the military commission over which he presides. Only his signature was attached.
News stories out of Guantanamo Bay about the judge’s ruling said that Hamdan’s commission trial is now set for March 3, but that defense lawyers plan to seek a postponement until late May.
In dealing with constitutional challenges raised by Hamdan’s defense team, Judge Allred first ruled that the D.C. Circuit — the federal civilian court that has review power over final verdicts in military commission cases — had ruled in the Boumediene v. Bush cases last Feb. 20 that Guantanamo detainees have no constitutional rights of any kind.
The judge, however, went on to discuss two of the three constitutional claims, and rejected them — the claim that the MCA was an unconstitutional “ex post facto” law because it added punishment to earlier military rulings on Guantanamo detention, and the claim that the MCA was an invalid “bill of attainder” with Congress labeling the detainees as unlawful enemy combatants. Judge Allred ruled that the commission’s independent ruling that Hamdan qualified for unlawful status, and thus for trial, had cured either of those alleged constitutional flaws.
