Military Commission Judge Rebuffs Bush Administration and Applies Geneva Conventions to Guantánamo Detainee

December 18, 2007 12:00 am

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NEW YORK – In a rebuke to Bush administration policy, a military commission judge found Monday that Guantánamo Bay detainee Salim Ahmed Hamdan is entitled to a determination of whether he is a prisoner of war protected by the Geneva Conventions, which govern the rights and treatment of captives in wartime.

“It’s always a positive step when the military commissions proceed in accordance with the United States’ international law obligations. However, the judge’s decision doesn’t resolve the flaws inherent to the makeshift commissions system – it’s like sticking a band-aid on a broken leg,” said Hina Shamsi, a staff attorney with the ACLU’s National Security Project who attended Hamdan’s hearing earlier this month. “Under the Geneva Conventions, Mr. Hamdan should have received this hearing six years ago, when he was first captured by U.S. forces instead of now, as an add-on to an entirely new and procedurally flawed process. That we are still stuck on such preliminary, yet fundamental, issues is a stark reminder of just how far astray we’ve traveled because of the Bush administration’s policies.”

At a hearing at Guantánamo earlier this month, attorneys for Hamdan, who is accused of having been Osama bin Laden’s bodyguard, asked the military judge to grant their client a status hearing under Article 5 of the Geneva Conventions. Military Judge Keith J. Allred decided in Hamdan’s favor in a ruling that became public today. If the judge now determines – as his attorneys argue – that Hamdan is a prisoner of war, he will be entitled to trial in a court martial proceeding under U.S. military law.

Hamdan is charged with conspiracy and providing terrorism support. It was in a challenge to his detention that the Supreme Court ruled in 2006 that the then-existing military commissions system violated the Uniform Code of Military Justice and the Geneva Conventions. In response, Congress passed the Military Commissions Act under which Hamdan is currently being prosecuted. His case was originally thrown out in June when Judge Allred found the government failed to show he was an “unlawful enemy combatant” as the law required. Monday’s ruling comes after the case was reinstated following the government’s appeal.

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