Appeals court backs Bush on tribunals

WASHINGTON – A federal appeals court Friday reinstated the use of military tribunals established by the Bush administration to try suspected terrorists held at Guantanamo Bay and cleared the way for the trial of a chauffeur for Osama bin Laden.

The three-judge panel unanimously found that the case of Salim Ahmed Hamdan should move forward under rules set by the Pentagon, a significant victory for the Bush administration’s controversial policies in the war on terror.

In its ruling, the panel sided with the administration’s claim that Hamdan and the other 14 terrorist suspects slated for trial by the military commissions do not qualify for prisoner of war status and protections under the Geneva Convention, which governs the rights of prisoners of war.

“The president found that Hamdan was not a prisoner of war under the convention,” Judge A. Raymond Randolph wrote for the panel. “Nothing in the regulations, and nothing Hamdan argues, suggests that the president is not a ‘competent authority’ for these purposes.”

Neal Katyal, an attorney for Hamdan, attacked the ruling, claiming it ignored “200 years of constitutional law.”

“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,” Katyal said. “It gives the president the raw authority to expand military tribunals without limit, threatening the system of international law and armed conflict worldwide.”

Attorney General Alberto Gonzales praised the decision as an affirmation of President Bush’s “authority to establish military commissions to try and punish enemy combatants who have violated the laws of war.”

Hamdan, who is in his mid-30s and is from Yemen, is charged with conspiracy to commit war crimes, murder and terrorism. He has acknowledged being a driver for bin Laden, but maintains that he is not a member of al Qaeda and that he is innocent of terrorism. He was captured in Afghanistan in 2001.

Hamdan’s trial before a tribunal began last August but was halted when U.S. District Judge James Robertson found here that Hamdan could not be tried unless a “competent tribunal” found that he was not covered by the Geneva Convention.

In its ruling, the appellate court said that Congress gave Bush the authority to set up the military commissions and that they were competent to decide whether Hamdan should receive Geneva Convention protections.

Randolph and U.S. Circuit Appeals Court Judges John Roberts and Stephen Williams also ruled that the Uniform Code of Military Justice that governs military legal proceedings “imposes only minimal restrictions upon the form and function of military commissions,” and does not prohibit the proceedings at the American naval base at Guantanamo Bay, Cuba.

But Katyal said, “It’s quite an odd holding. Historically, military commissions have always been confined by the rules of courts martial. Here they are just saying, ‘Well, those rules can be disregarded by the president if he sees fit.’ “

Katyal said he would appeal the decision.

In a concurring opinion, Williams wrote that one section of the Geneva Convention should apply, Article 3 of the protocols, which compels captors to ensure that prisoners receive “humane treatment” and “the judicial guarantees which are recognized as indispensable by civilized peoples.”

Eugene Fidell, president of the National Institute for Military Justice and a critic of the government’s handling of enemy combatants, said the Supreme Court ultimately would likely decide the case.

Friday’s decision does not bode well for another 60 or so Guantanamo detainees who have petitioned U.S. courts to force the government to justify their detentions.

If other courts accept that detainees are not protected by the Geneva Convention, the military could keep Guantanamo inmates out of reach of U.S. courts for lengthier periods, said Kristine Husky, an attorney for 11 Kuwaiti prisoners at the naval base.