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Washington-Another major assault on the Bush administration’s broad assertion of executive power in the war on terror soon will unfold in a federal appellate court here in a challenge to military tribunals. The U.S. Circuit Court for the District of Columbia last week agreed to expedited review of an appeal by the U.S. Department of Justice of a lower court ruling that has halted trials by military tribunals or military commissions at Guantanamo Bay, Cuba. Hamdan v. Rumsfeld, No. 04-1519. The Nov. 8 ruling by U.S. District Judge James Robertson in a case involving Salim Ahmed Hamdan, allegedly a chauffeur to Osama bin Laden, shot several major holes in the administration’s anti-terrorism positions. The ruling, among other things, rejected the government’s position that the president has “untrammeled power” to establish military tribunals because of Article II of the Constitution and his role as commander-in-chief. It rejected the administration’s position that the protections of the Geneva Convention Relative to the Treatment of Prisoners of War do not apply to al-Queda detainees captured in Afghanistan. And it found unlawful the rules of the military commissions, which could exclude the accused from some proceedings. “I think Judge Robertson issued a careful ruling, one that was consistent with the way we brought this litigation: to be very respectful of the president’s authority,” said Neal Katyal of Georgetown University Law Center, who, with Navy Lt. Cmdr. Charles Swift, represents Hamdan. “I’m someone who is a strong believer in executive power but in this particular instance, the president has gone too far.” But it is Robertson who has gone too far, according to the Justice Department. In his request for an expedited appeal, Assistant Attorney General Peter Keisler said the rulings “represent an unprecedented judicial intrusion into the prerogatives of the president” and have “potentially very broad and dangerous ramifications.” Whose power? On Nov. 13, 2001, President Bush issued the military order authorizing the creation of military commissions to try certain noncitizens charged in connection with the war on terrorism. The order was almost immediately controversial, with some law professors, members of Congress and others contending that it violated the separation of powers because there was no specific congressional authorization. Equally controversial within the international, human rights and military communities was the administration’s decision-based on legal advice from the Justice Department and White House Counsel (now Attorney General-designate) Alberto Gonzales-that those captured in the Afghanistan war and detained at Guantanamo Bay were not prisoners of war, and were not entitled to the protections of the Geneva Conventions. The administration later announced that it would apply the conventions’ protections to Taliban prisoners, but not to al-Queda prisoners. Besides Hamdan, who is a Yemeni national, three other detainees have been designated for trial: David Hicks, an Australian national; Ali Hamza Ahmed Sulayman al-Bahlul, a Yemeni national; and Ibrahim Ahmed Mahmoud al-Qosi, a Sudanese national. In his habeas petition, Hamdan, captured in Afghanistan in late 2001, claimed prisoner-of-war status, which, if true, would only allow him to be tried by court-martial or in federal court. Robertson said that Supreme Court precedents hold that the authority to appoint military commissions is found, not in the president’s inherent power, but in the Articles of War, a predecessor of the Uniform Code of Military Justice. And that authority, he added, does not extend beyond “offenders or offenses that by statute or by the law of war” may be tried by military commissions. The Geneva Conventions, which are part of the law of war, require trial by court-martial as long as Hamdan’s POW status is in doubt, said the judge. He rejected the government’s argument that the conventions do not apply because al-Queda is not a state party to the Geneva Conventions. The conventions, wrote Robertson, are triggered “by the place of the conflict, and not by what particular faction a fighter is associated with.” The judge also said that Hamdan’s POW status must be determined by a competent tribunal. The president is not a tribunal, he added, and the Combatant Status Review Tribunal, which is set up to determine whether detainees are properly detained as enemy combatants, does not make the POW determination. Even if Hamdan is found not to be a POW, Robertson held that he could not be tried by military commission under its current rules of evidence and procedure. Most troublesome, according to the judge, is that the accused may be excluded from proceedings, and that evidence may be admitted that the accused will never see because his lawyer will be forbidden to disclose it to him. “It is obvious beyond the need for citation that such a dramatic deviation from the confrontation clause could not be countenanced in any American court,” wrote the judge, adding that the right to trial in one’s presence is also established in international humanitarian law. Hamdan’s case drew strong supporting briefs from constitutional and international law professors, retired generals and admirals, human rights officials and the Center for International Human Rights. The Washington Legal Foundation, a pro-business law group, supported the government, arguing-as the Justice Department has indicated that it will on appeal-that the district court should have abstained until after the military commission proceedings were completed. Hamdan is not the only challenge to military commissions in the court pipeline. Briefing is ongoing in a challenge brought by the Australian detainee, David Hicks. The Hicks case raises similar issues, said Hicks’ counsel, Mark Goldman of Jenner & Block in Washington. Hicks also argues that the crimes he is charged with are not crimes at all under the law of war. He raises an equal protection claim because the military commission, under the presidential order, can try only noncitizens and not citizens, even if they engage in identical conduct. He also makes a speedy trial claim and presses the constitutional separation of powers issue, arguing that these commissions were never authorized by Congress. For now, though, it is “full speed ahead” to the D.C. Circuit, said David Vladeck of Georgetown University Law Center, who filed the constitutional law professors’ brief supporting Hamdan. A key question raised by the case, he said, should be asked by the Senate when it considers Gonzales’ nomination. “Why has the government insisted so vigorously that these detainees are not entitled to the fundamental protections of the Geneva Conventions?” he asked. “The convention protections are very minimal.” Gonzales’ exact role in formulating these polices is unclear, said Vladeck, and the policies reflect a clear sense that the end justifies the means. “These were very odd legal opinions,” he added. “They don’t deal with precedents; they announce rules, but, by and large, they escaped the kind of scrutiny they deserve. A lot of people agree with the idea that when it comes to terrorists, torture may be justified because the end-saving American lives-justifies the means. It would be very important to know if an attorney general believes that. The law is supposed to be a bulwark against that kind of thinking.” Vladeck and Douglass Cassel, head of the Center for International Human Rights at Northwestern University School of Law, predicted that the government, on appeal, would continue to argue that the detainees have no protection under international law, and that the president has inherent and congressional authority to establish military commissions without any judicial review. In its expedited request, the government argues that the court’s ruling that those captured during armed conflict have judicially enforceable rights under the Geneva Conventions “opens a Pandora’s box” that could entangle the president in a “morass of litigation” brought by enemy detainees and POWs. The government also contends that the president’s determination that al-Queda is a distinct party to the Afghanistan conflict is not subject to contradiction by any court. It argues further that federal courts must abstain from hearing challenges to military commissions until the proceedings are completed, and that the president has inherent authority to create military commissions. But the department did not seek a stay of the lower court’s order, noted Cassel, who believes that the only proper place under international law to try the detainees is in federal court. “If they’re serious about this, why aren’t they moving to stay the order?” asked Cassel. “My answer is there is a division of opinion in the Pentagon and Justice over whether it’s worth continuing to pursue these ill-fated military commissions. It has been three years and they’ve only been able to charge four people. They’re not charging Osama bin Laden, but his chauffeur.”

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