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Guantanamo Military Tribunals Are Upheld

Times Staff Writer

A federal appeals court ruled Friday that the Bush administration’s plan to use military tribunals to try detainees at the U.S. naval base at Guantanamo Bay, Cuba, was constitutional.

The decision is likely to restart a controversial process that has been stalled for eight months.

A three-judge panel of the U.S. Circuit Court of Appeals for the District of Columbia found that the United States could bring Salim Ahmed Hamdan and three other detainees charged with war crimes before the tribunals without violating the Geneva Convention.

Resumption of the tribunals would mark the first time since World War II that prisoners of war and so-called enemy combatants would be tried in a court-martial setting.

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The judges said the Geneva Convention did not apply in the prosecution of captives in the war on terrorism because they belonged to organizations -- such as the Taliban and Al Qaeda -- that were not government entities or signatories to the accord that provided guidelines on how prisoners were to be treated.

“Al Qaeda is not a state ... that signed onto the Geneva Convention,” the court said, adding that “no one claims that Al Qaeda has accepted and applied the provisions of the convention.”

Justice Department lawyers who have defended the military tribunal process said Friday that the decision was a “major win for the administration” in the war on terrorism. Atty. Gen. Alberto R. Gonzales said the ruling reaffirmed the Bush administration’s “critical authority” to proceed with the tribunals.

Lawyers for Hamdan, who is accused of being a driver and bodyguard for Osama bin Laden, signaled that they would appeal the ruling. The matter will probably go to the Supreme Court.

Neal K. Katyal, a lead lawyer for Hamdan and a Georgetown University law professor, called the decision “contrary to 200 years of constitutional law.”

“As many retired generals and admirals of our military have stated,” Katyal said, “the cavalier treatment of individuals at Guantanamo Bay -- and the setting aside of the Geneva Convention in the military commission process -- threatens our troops, our interests and our way of life.”

It remained unclear Friday whether the military would restart the tribunal process or wait until the issue was resolved on appeal, which could take another year.

The Defense Department “will not be speculating on the next steps,” said Air Force Maj. Michael Shavers, a Pentagon spokesman.

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Hamdan, a Yemeni, has said that he was a mechanic with a fourth-grade education when he left home for Afghanistan to find work. There he obtained a car and was employed as a driver for Bin Laden, the Al Qaeda leader, from 1996 until U.S. troops invaded Afghanistan after the Sept. 11 terrorist attacks.

His lawyers maintain that he wanted to send money home to his family and that he never embraced Al Qaeda’s violent ideology or conspired to harm others.

He was captured by Afghan military forces in November 2001, turned over to the U.S. military and taken to the Guantanamo Bay prison.

In July 2003, the Bush administration determined that there was “reason to believe” that Hamdan was a member of Al Qaeda or was “otherwise” involved in terrorism against the United States.

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He was designated for trial before a military commission, and in December 2003 he was removed from the general prison population and placed in solitary confinement.

Many detainees have been characterized as merely foot soldiers for the Taliban army; more than 230 people have been released without being tried.

Hamdan was considered a major catch. On July 13, 2004, the man with six aliases was charged with “offenses triable by a military commission.” The charges included terrorism, murder, attacking civilians and destroying property.

The government said Hamdan knew Bin Laden and his associates were behind the attacks on two U.S. embassies in Africa and on the U.S. destroyer Cole off the shore of Yemen, as well as the Sept. 11 plot.

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At the same time, military prosecutors said, Hamdan delivered weapons and ammunition to Al Qaeda members and associates, transported weapons from Taliban warehouses to Al Qaeda, and was Bin Laden’s driver in convoys in which bodyguards carried Kalashnikov rifles and rocket-propelled grenades.

Prosecutors also said he received weapons training at the notorious Al Farouq camp in Afghanistan.

Hamdan’s tribunal was in the pretrial stages when it was stopped in November after U.S. District Judge James Robertson ruled that tribunals were illegal and violated military law and the Geneva Convention.

It was Robertson’s ruling that was reversed Friday by the three appellate judges -- Stephen F. Williams, A. Raymond Randolph and John G. Roberts.

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In addition to finding that the Geneva Convention did not apply, the three also determined that the tribunals were properly set up by the White House, were authorized by Congress and should go forward.

The Supreme Court ruled last year that detainees should be given some kind of due process, but was vague about what type. If the justices agree to hear the Hamdan case, they will have the opportunity to spell out how prisoners in the war on terrorism should be tried.

Kristine Huskey, a Washington lawyer for 11 Kuwaitis imprisoned at Guantanamo Bay, said she and other attorneys representing about 130 detainees would be watching the Hamdan case closely. The prisoners, she said, were weary of not having their day in court and increasingly suspicious that the tribunal process was stacked against them.

“It is not, by far, a procedure that anybody is happy with,” she said.

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