Judge halts legal proceeding at Guantanamo

WASHINGTON -- A federal judge shut down the first American military commission since World War II yesterday, ruling that the Bush administration violated the Geneva Conventions in its handling of prisoners at the Guantanamo Bay prison.

The ruling, the first test of a US Supreme Court decision in June granting legal recourse in civilian court to the 550 or so "enemy combatants" being held at Guantanamo, delivered a new legal blow to President Bush's unorthodox war on terrorism policies.

US District Judge James Robertson's ruling immediately halted pretrial motion hearings in Guantanamo Bay against Salim Ahmed Hamdan, a Yemeni detainee accused of serving Osama bin Laden as the Al Qaeda leader's personal bodyguard and driver.

The administration expressed outrage, asserting again that terrorists are not entitled to protections under the Geneva Conventions and that the president has the inherent power to convene military commissions as commander in chief.

"We vigorously disagree with the court's decision and will seek an emergency stay of the ruling and immediately appeal," said Justice Department spokesman Mark Corallo. "By conferring protected legal status under the Geneva Conventions on members of Al Qaeda, the judge has put terrorism on the same legal footing as legitimate methods of waging war."

Robertson ruled that the case could not go forward until the US military gave Hamdan a separate hearing to determine whether he is a prisoner of war under the Third Geneva Convention, a provision the Bush administration sidestepped by labeling Hamdan and all others captured in Afghanistan as "enemy combatants."

"The government has asserted a position starkly different from the positions and behavior of the United States in previous conflicts, one that can only weaken the United States' own ability to demand application of the Geneva Conventions to Americans captured during armed conflicts abroad," Robertson wrote.

The ruling also rejected the Bush administration's contention that military necessity dictates that suspected terrorists be tried outside the normal rules of evidence to prevent them from seeing classified intelligence. Robertson ruled that Hamdan must see all the evidence against him.

The decision was made five months after the US Supreme Court held that Guantanamo Bay prisoners may challenge their detention in civilian courts, rejecting the Bush administration's contention that the military alone had total authority over them.

But the Supreme Court did not lay out precise instructions for the hearings. The ruling yesterday was the first major decision applying that landmark precedent.

The decision by Robertson, a 1994 Clinton appointee, focused on the White House's announcement in early 2002 that the Geneva Conventions would not apply to the Afghanistan conflict.

Nearly every nation, including the United States, has agreed to abide by the Geneva Conventions, which govern the conduct of armies during wartime. Under the treaty, anyone captured near battle is entitled to a hearing by a "competent tribunal" to determine whether he is entitled to prisoner of war status.

The Bush administration ignored this requirement during the Afghanistan war.

Since the Supreme Court ruling, the military has been conducting individual "status reviews" for each detainee in Cuba.

Human rights groups have contended that detainees are not represented by a lawyer during the status-review hearings and are not allowed to see all the evidence against them. Robertson said the military told him it gave Hamdan such a "combatant status review" in early October, but he rejected it as not sufficient to meet the requirements of the conventions.

Under the treaty, anyone who has not received such a hearing is presumptively to be treated as a POW and, if tried, has the same protections that a soldier in the military that captured him would receive.

Eugene R. Fidell, president of the National Institute of Military Justice called the decision "potentially a major setback" for the Bush administration.

"This is the opening gun in Round Two of the Guantanamo litigation," Fidell said, noting that the administration's decision to deny POW hearings to Afghanistan fighters was one of the most contentious aspects of the war on terrorism, though it was later overshadowed by the Abu Ghraib prison abuse scandal in Iraq.

The Geneva Conventions were ratified by the US Senate in the 1950s, making them "the highest law of the land" under the Constitution.

In addition, the Republican-led Congress in 1996 passed the War Crimes Act, which President Clinton signed. That law makes any "grave breach" of the conventions committed by a US official a domestic felony for which punishment could mean the death penalty. Not giving a prisoner of war the fair trial prescribed by the conventions is one of a short list of violations considered to be a "grave breach."

In a once-secret memo written on Jan. 25, 2002, by White House counsel Alberto R. Gonzales, Bush's top lawyer warned that prosecutors in a later administration could bring "unwarranted charges" against high-level Bush administration officials for war crimes as a result of their treatment of Al Qaeda members captured after the terrorist attacks of Sept. 11, 2001.

Gonzales noted in the memo, leaked to the media earlier this year, that a critical advantage in declaring that Al Qaeda and Taliban fighters did not have protections under the Geneva Conventions is that it "substantially reduces the threat of domestic criminal prosecution under the War Crimes Act."

The memo, lawyers for Guantanamo Bay detainees have contended, demonstrates that the administration was aware of the laws of war but sought to avoid them.

The case challenging the military commissions was brought by Navy Lieutenant Commander Charles Swift, who is also Hamdan's appointed military counsel in the commission. Hamdan is one of four detainees at the base who have been designated as eligible for a military commission.

His full trial was scheduled to begin next month and last about two weeks.

In Cuba, the presiding officer for the military commission, Colonel Peter Brownback, suspended the hearings indefinitely after receiving news of the ruling.

A spokesman said the news came while Hamdan was in a courtroom.

Corallo, the Justice Department spokesman, defended the commission rules struck down by the district court, calling them "carefully crafted to protect America from terrorists while affording those charged with violations of the laws of war with fair process."

He pledged that the Justice Department would "make every effort to have this process restored through appeal."

Critics of the commissions within the human rights community, some of whom have traveled to Cuba to witness pretrial motion hearings, have said the commission rules lack procedural protections, such as the ability to appeal the case to an independent panel of civilian judges.

Anthony D. Romero, executive director of the American Civil Liberties Union, applauded the ruling yesterday for sending "a clear message that the fight against terrorism does not give the government license to disregard domestic and international law."