The Bush administration is struggling to put military commission trials back on track at Guantanamo Bay Naval Base in the face of a legal challenge by a detainee who was Osama bin Laden’s personal driver.
U.S. District Judge James Robertson brought the military commissions to a halt in November, saying their procedures were unlawful.
A federal appeals court was having arguments in the case Thursday. Last November’s ruling is “an extraordinary intrusion into the executive’s power” to defend the United States, the government says in a harsh attack on Robertson’s decision. President Clinton appointed Robertson to the bench.
At the heart of the legal battle is the fact that President Bush has declared international treaty protections do not apply to Salim Ahmed Hamdan and all others deemed by the U.S. government to be linked to al-Qaida.
The judge’s decision five months ago halted the trial of Hamdan, who joined forces with Osama bin Laden in 1996, the government says, serving as his personal driver and delivering weapons and ammunition to al-Qaida.
Hamdan’s lawyers say he is an innocent civilian who was not part of al-Qaida and whose only crime was working for a very bad employer. A driver and mechanic with a fourth-grade education, Hamdan left his home country of Yemen to find a better job, his lawyers say, and he was captured by bounty hunters in Afghanistan, sold to the Americans and shipped to Guantanamo Bay, Cuba.
Now Hamdan would be barred from part of his trial, while the government presents classified evidence that only his attorneys would be allowed to see. The government says national security necessitates the step, leading to the judge’s ruling that the Bush administration’s military commissions are unlawful.
“The right to be present at all stages in criminal proceedings is fundamental, guaranteed by military law, common law, constitutional law and international law,” Hamdan’s attorneys say in an appeals court filing.
During 11 months in solitary confinement, Hamdan exhibited symptoms consistent with acute mental injury including suicidal inclinations, his lawyers say.
Assigned an attorney at the prosecution’s request for the limited purpose of negotiating a plea, Hamdan refused to plead guilty to anything and his demand for a speedy court martial in a military court was rejected. In July 2004, 32 months after his capture in Afghanistan, he was charged with conspiracy to engage in terrorism.
The government refuses to give Hamdan a court martial in military court. There, unlike the Pentagon’s military commissions, federal law enables defendants to be present for the entire trial.
Hamdan’s lawyers are making their arguments to an appeals court panel that includes two judges who denied detainees access to U.S. civilian courts two years ago.
The three-judge panel wrote then, “If the Constitution does not entitle the detainees to due process, and it does not, they cannot invoke the jurisdiction of our courts to test the constitutionality or the legality of restraints on their liberty.”
However, the Supreme Court opened the door to civilian courts for the detainees last June, ruling that the president lacks the authority to hold enemy combatants indefinitely with no access to lawyers or the ability to challenge their detention.
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On the Net:
Court decision against the Bush administration last November:
https://www.dcd.uscourts.gov/04-1519.pdf
