WASHINGTON – The U.S. government on Thursday defended the military commissions created to try alleged al Qaeda and Taliban terrorists held at Guantanamo Bay, Cuba, telling a federal appeals court they should be allowed to run their course before letting defendants appeal to U.S. courts.
In November, a federal judge halted the war crimes trial of Salim Ahmed Hamdan, who admitted that he was al Qaeda leader Osama bin Laden’s driver in Afghanistan but denies that he is a terrorist.
In its brief, the U.S. government described Hamdan’s challenge as “premature.”
But Hamdan’s lawyers told the appeals court that the military commissions’ rules are stacked against him.
“This is not a system of law. It is a system of rules that change all the time,” Neal Katyal, Hamdan’s civilian lawyer, told the judges.
Hamdan, who was captured in Afghanistan in 2001, is one of 12 Guantanamo detainees charged as a war criminal by President Bush.
The proceedings involving four detainees had already begun when the judge ruled that the prisoners should be treated according to the Geneva Convention.
Thursday’s hearing was held before three judges of the U.S. Court of Appeals for the District of Columbia Circuit.
The judges peppered both sides with pointed questions.
The Pentagon prefers the commissions to regular court-martial proceedings because, according to one official, “they have more flexibility” in how classified information is handled.
Hamdan’s lawyers say the accused would be asked to leave the courtroom when classified information is discussed. But the judges said that there were other instances in international tribunals where defendants are asked to leave.
Charles Swift, the military lawyer assigned to Hamdan, said the United States should enforce international law and not the “law of Rwanda, not the law of Saudi Arabia.”
Judge A. Raymond Randolph asked if the U.N. International Criminal Tribunal set up to try former Serbian dictator Slobodan Milosevic had rules. In that case, Swift said, the judges were all independent, unlike those who serve on the military commissions.
The Bush administration argues that Hamdan and other detainees should not get prisoner-of-war privileges afforded under the 1949 Geneva Convention because they did not follow the rules of war, opting to blend in with the civilian population.
“The line should be different here” because of the unique nature of terrorism, Assistant Attorney General Peter Keisler said. “We don’t know who the enemy is.”
Judge Randolph asked Keisler why the U.S. treated Viet Cong guerrillas according to the Geneva Convention even though they also wore civilian clothing when they battled U.S. troops in Vietnam. Keisler said “it may have been a discretionary act.”