Here we go

[NousDefionsDoc]

Court Ruling Halts Guantanamo Hearings

By PAISLEY DODDS, Associated Press Writer

GUANTANAMO BAY NAVAL BASE, Cuba - A U.S. federal court halted proceedings ahead of the military trial of Osama bin Laden (news - web sites)'s driver Monday, saying his status as an enemy combatant had to be determined by a competent tribunal.


The government said it would immediately seek a stay of that ruling and file an appeal. It was the first time a federal court has halted proceedings ahead of trials before U.S. military commissions, which had been resurrected from World War II, at the Guantanamo Bay Naval Base.

A U.S. District Court judge in Washington halted the trial of Salim Ahmed Hamdan, 34, of Yemen, in a lawsuit filed by his lawyers.

"Unless and until a competent tribunal determines that petitioner is not entitled to protections afforded prisoners of war under Article 4 of the Geneva Convention ... of Aug. 12, 1949, he may not be tried by military commission for the offenses with which he is charged," U.S. District Judge James Robertson said in his ruling.
The court also ruled that unless the military commission guidelines are changed to conform to the Uniform Code of Military Justice, Hamdan cannot be tried by the commissions and must be moved from the pre-commission wing at the Camp Delta prison camp to the general population. Four terror suspects set to go before the commissions were moved out of solitary cells recently to a pre-commission wing of Delta.

In Washington, U.S. Justice Department spokesman Mark Corallo said the government would appeal Monday's court ruling on the grounds that the Geneva Conventions do not apply to members or affiliates of al-Qaida.
"We vigorously disagree with the court's decision, and will seek an emergency stay of the ruling and immediately appeal," Corallo said in a statement on the department's Web site.

"We believe the President properly determined that the Geneva Conventions have no legal applicability to members or affiliates of al-Qaida

"The process struck down by the district court today was carefully crafted to protect America from terrorists while affording those charged with violations of the laws of war with fair process, and the Department will make every effort to have this process restored through appeal."

Hamdan's military-appointed defense lawyer, Lt. Cmdr. Charlie Swift, also asked the commission Monday to reinstate two members and an alternate who were dismissed after challenges to their impartiality.

Swift said he would not have challenged them in August if he knew his client would be penalized by facing a smaller three-member commission.
Hamdan's military trial was to have begun Dec. 7 at this U.S. base in eastern Cuba. The ruling in Washington came as lawyers began pretrial motion hearings in the case of Hamdan, who is charged with conspiracy to commit war crimes, murder and terrorism.

Hamdan said he never supported terrorism, was not an al-Qaida member and only earned a pittance driving bin Laden.

"These commissions were intended for people like Osama bin Laden, not a mechanic who drove people around," Swift said. "The fact that we're doing this will taint the reputation of military justice for years to come."

Hamdan was found to be an enemy combatant last month by a review tribunal — a classification affording fewer legal protections than prisoner of war. His lawyer was barred from representing him at the hearing.

Swift's federal lawsuit is one of more than 60 similar challenges, arguing that the commissions are illegal and should not have jurisdiction.

Since a U.S. Supreme Court (news - web sites) ruling in June cleared the way for detainees to challenge their detentions in U.S. courts, civilian attorneys have poured into Guantanamo to meet with clients.

Some of the 550 prisoners from more than 40 countries have been held for nearly three years, but few have had access to attorneys and only four have been charged.

Since President Bush (news - web sites) ordered the commissions, defense attorneys have said the rules are so vague that a fair trial is impossible. There is no specific appeal process, and lawyers are still debating what type of evidence can be used during trials. "

[Roguish Lawyer]

Appointed by Clinton. From a good law firm, though.

http://www.dcd.uscourts.gov/robertson-bio.html

[Roguish Lawyer]

Did a little googling on the guy. Looks like a real left-wing wacko judge -- very result-oriented.

[BMT (RIP)]

http://hosted.ap.org/dynamic/stories...Y&SECTION=HOME

BMT

[vsvo]

Sorry for the double post, I just saw BMT's post!

Court: Military Panels to Try Detainees

By PETE YOST, Associated Press

A federal appeals court put the Bush administration's plan to use military commissions to try terrorist suspects back on track Friday, saying a Guantanamo Bay detainee who once was Osama bin Laden's driver can stand trial.

A three-judge panel ruled unanimously against Salim Ahmed Hamdan, whose case was halted by a federal judge on grounds commission procedures were unlawful.

"Congress authorized the military commission that will try Hamdan," the U.S. Court of Appeals for the District of Columbia Circuit said.

The protections of the 1949 Geneva Convention do not apply to al-Qaida and its members, so Hamdan does not have a right to its provisions, the appeals judges said.

U.S. District Judge James Robertson ruled last year that Hamdan could not be tried by a military commission until a competent tribunal determined that he was not a prisoner of war.

"We believe the military commission is such a tribunal," said the appeals court opinion written by Judge A. Raymond Randolph, who was appointed by the first President Bush. He was joined by Stephen Williams, a Reagan appointee, and Judge John Roberts, placed on the court by the current President Bush.

Bush created the military commissions after the Sept. 11, 2001, attacks, opening a legal channel for alleged al-Qaida terrorists and their associates to be tried for war crimes. Hamdan's lawyers said Bush's move violated the separation of powers in the Constitution.

The court disagreed, saying Bush relied on Congress' joint resolution authorizing the use of force after the Sept. 11 attacks, as well as two congressionally enacted laws.

"We think it no answer to say, as Hamdan does, that this case is different because Congress did not formally declare war," Randolph wrote.

Congress authorized the president to use all necessary and appropriate force in the war on terrorism.

Two lawyers representing Hamdan, Neal Katyal and Navy Lt. Commander Charles D. Swift, said the appeals court ruling "is contrary to 200 years of constitutional law." Katyal said Hamdan will seek further appeals.

"Today's ruling places absolute trust in the president, unchecked by the Constitution, statutes of Congress, and longstanding treaties ratified by the Senate of the United States," the two defense lawyers said in a statement.

A Pentagon spokesman, Maj. Michael Shavers, said officials were preparing a statement in response to the ruling.

Just 15 of the 520 detainees at Guantanamo Bay have been designated for such trials and only four have been charged.

The rest face indefinite detention, and the Bush administration refuses to grant any of the detainees prisoner-of-war status, a decision that has fueled international criticism of the United States.

Hamdan, a mechanic with a fourth-grade education, says he left his home country of Yemen looking for work and wound up in Afghanistan, working for bin Laden from 1997 until the U.S. attack in Afghanistan in 2001.

Hamdan denies conspiring to engage in acts of terrorism and denies he was a member of al-Qaida.

Hamdan's lawyers say he simply wanted to earn enough money to return to Yemen, buy his own vehicle and support his family as a driver.

The issue of military commissions has been eclipsed by alleged mistreatment of detainees at Guantanamo Bay, putting the Bush administration — and some of its loudest critics — on the defensive.

Sen. Dick Durbin, D-Ill., apologized a week after comparing interrogation at the Guantanamo Bay prison to the methods of Nazis and other repressive regimes.

Muslims protested overseas after U.S. officials acknowledged in May they had substantiated five cases in which military guards or interrogators mishandled the Quran. The human rights group Amnesty International condemned conditions at the prison camp, calling Guantanamo "the gulag of our time," a description that President Bush dismissed as "absurd."

[Sigi]

Originally Posted by NousDefionsDoc

"These commissions were intended for people like Osama bin Laden, not a mechanic who drove people around," Swift said.

Hamdan, a mechanic with a fourth-grade education, says he left his home country of Yemen looking for work and wound up in Afghanistan, working for bin Laden from 1997 until the U.S. attack in Afghanistan in 2001.

If he was close to Bin Laden he was AQ.

Glad this got turned around.

[vsvo]

The Supreme Court agreed last week to hear this case. This looks to be an important decision regarding the reach of the Executive's power during time of war. It also looks like the Court will address the GC question. Chief Justice Roberts has announced he will recuse himself since he was part of the DC Circuit decision. If there is a 4-4 tie I believe the appellate decision will stand.

http://www.supremecourtus.gov/qp/05-00184qp.pdf

Bush created the military commissions after the Sept. 11, 2001, attacks, opening a legal channel for alleged al-Qaida terrorists and their associates to be tried for war crimes. Hamdan's lawyers said Bush's move violated the separation of powers in the Constitution.

The court disagreed, saying Bush relied on Congress' joint resolution authorizing the use of force after the Sept. 11 attacks, as well as two congressionally enacted laws.

"We think it no answer to say, as Hamdan does, that this case is different because Congress did not formally declare war," Randolph wrote.

Congress authorized the president to use all necessary and appropriate force in the war on terrorism.

Congress has the power to declare war, Article I, Section 8, Clause 11. While there is no doubt we are a nation at war, Congress has not formally declared war, similar to other conflicts in recent history. This is another example of "constitutional gloss." By authorizing the President to act via the AUMF, and appropriating the necessary funds, Congress has in effect waived its power to declare war. The Court, in the recent Gitmo cases, has held that the President is authorized to wage the GWOT. Thus, the three branches have interpreted congressional authorization coupled with the funding to mean the President is authorized to carry out the GWOT.