Military Commissions Set to Resume After Court Ruling on Bin Laden's Driver

By Anthony Dworkin

Trials of suspected al-Qaeda terrorists before military tribunals in Guantanamo Bay will be restarted "as soon as possible," according to U.S. Defense Secretary Donald Rumsfeld, following an Appeals Court ruling that upheld the tribunal process.

The decision by a three-judge panel of the D.C. Court of Appeals, issued on Friday July 15, overturned an earlier decision by a D.C. district judge that had found the commission process to be a violation of the Geneva Conventions.  The earlier ruling had led the trial of the defendant involved -- Salim Ahmed Hamdan -- to be dramatically halted in mid-session last November.

Hamdan, a Yemeni citizen who worked as Osama bin Laden's driver in Afghanistan, was the first defendant to appear before the military commissions set up by Presidential order in the aftermath of September 11.  Hamdan is one of four Guantanamo detainees who have been charged by the commissions -- in his case, with conspiracy to commit attacks on civilians, murder, and terrorism.

Last November's district court ruling -- issued by Judge James Robertson -- held that the commission process violated international law because the United States had not allowed a "competent tribunal" to decide whether Hamdan was entitled to the status of prisoner of war.  Under the 3rd Geneva Convention, whenever there is any doubt about whether a detainee should receive prisoner of war status, he must be treated as a POW until a competent tribunal decides the matter.

The military commissions would not have jurisdiction over anyone deemed to be a POW, Judge Robertson continue, because they did not offer the same level of rights as would be available to US soldiers in a court-martial.  The Geneva Conventions require that prisoners of war be tried by "the same courts according to the same procedure" as soldiers of the country that is detaining them.

In its ruling last week, the Appeals Court panel decisively overturned the lower court decision, rejecting almost every argument that Judge Robertson had made.  It said that individuals had no right to bring cases against the American government for violations of the Geneva Conventions in American courts; that in any case Hamdan was a terrorist who was not covered by the Conventions; and that the tribunals were authorized by Congress and did not violate U.S. military law.

In a statement, the Pentagon announced that Hamdan's trial -- and that of the Australian David Hicks, also underway in November -- would resume "as soon as any necessary court orders are issued."  The normal period for resumption of the trials would be around fifty days, though the Pentagon is considering whether to press for an order giving it the right to resume trials immediately.

The Pentagon also said it would move forward quickly with the trials of two other detainees who have been charged, and that it would "continue to prepare" charges against eight other individuals at Guantanamo.

The Appeals Court decision is notable --among other reasons -- because it represents a judicial endorsement of the idea put forward by the Bush administration that there is an armed conflict against al-Qaeda that is not covered by any written international law.  The Court ruled that military operations against al-Qaeda are covered neither by the Geneva Conventions (which apply in "international armed conflict" between states) nor the single provision of the Conventions (Common Article 3) that applies in conflicts "not of an international character".

The Bush administration has always presented its confrontation with al-Qaeda as a war, separate and distinct from the war pursued against the Taliban in Afghanistan (to which it concedes the Geneva Conventions applied).  The Court of Appeals accepted this argument, saying that "the President's decision to treat our conflict with the Taliban separately from our conflict with al-Qaeda is the sort of political-military decision constitutionally committed to him."

One of the three judges on the panel filed a concurring opinion in which he challenged the idea that a conflict between the United States and al-Qaeda would not be covered by any written law.  Justice Stephen Williams said that a conflict between a state and a non-state actor (like a terrorist group) should be regarded as covered by Common Article 3.

This question -- though seemingly an abstruse legal debate -- could have important implications, because Common Article 3 forbids "humiliating and degrading treatment" of all detainees.

Related Chapters from Crimes of War: What the Public Should Know:

Terrorism

Related Links:

Military Commissions to Resume

Department of Defense News Release

July 18, 2005

Hamdan vs. Rumsfeld (.pdf file)

U.S. Court of Appeals for the D.C. Circuit

July 15, 2005

Briefing Paper on U.S. Military Commissions

Human Rights Watch

July 2005

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