Team Infidel
Forum Spin Doctor
Miami Herald
December 19, 2007 By Carol Rosenberg
In an interim ruling made public Tuesday, a military judge said Osama bin Laden's Yemeni driver, captured in Afghanistan, is entitled to consideration that he may be a prisoner of war -- a status that would collapse his war crimes trial at Guantánamo Bay, Cuba, for a third time.
Navy Capt. Keith Allred, the judge, said in a four-page decision dated Monday that he will next decide whether to declare Salim Ahmed Hamdan, 37, a POW.
His lawyers say the Bush administration got it wrong when they declared him first an ''enemy combatant,'' then later a presumed ``unlawful enemy combatant.''
Hamdan is the former bin Laden driver accused of being a foot soldier for al Qaeda who is now facing his second Military Commission, or war crimes trial. The U.S. Supreme Court ruled last year that an earlier commission format was unconstitutional.
In short, the Hamdan defense team asked Allred to hold a so-called Article V hearing ahead of his trial and declare him a prisoner-of-war captured in a battle because both Afghanistan, where he was captured, and the United States, which invaded the nation are bound by the Geneva Conventions.
Both nations signed the international treaty, which governs how nations that signed the conventions treat captives of war.
He is among 290 or so captives at Guantánamo -- some captured on Afghan soil, others elsewhere. A centerpiece of the legal framework for war-on-terror captives declared al Qaeda not subject to the Geneva Conventions as a stateless, global terror group.
Hamdan defense attorney Joseph McMillan, who was part of a team that took the driver's case to the Supreme Court, called the ruling ``a good development.''
''It is significant, a military judge saying the Geneva Conventions applies and it confers rights on this detainee, which he, the judge, is going to respect,'' said McMillan, a civilian attorney offering free-of-charge legal defense from the Seattle law firm Perkins Coie. ``He's saying that he's going to make the inquiry into whether Mr. Hamdan is a POW.''
In agreeing to include POW as Hamdan's possible status, Allred, a veteran military judge, said in his four-page ruling that a review process designed by the Pentagon was limited in scope.
The Combatant Status Review Tribunal ''did not address his entitlement to Prisoner of War Status, cite or discuss the Geneva Conventions or Article 5, or address the lawfulness of the accused's participation in hostilities,'' Allred wrote.
A Pentagon spokesman said the prosecution had not yet decided whether to appeal the judge's interim ruling.
If Allred decides Hamdan is an ''unlawful enemy combatant,'' his war crimes trial can go forward -- probably this summer.
He's accused of conspiracy and providing material support for terrorism as bin Laden's $200-a-month driver -- crimes punishable by a maximum life prison sentence.
If Allred rules he's a prisoner of war, he can't be tried by commissions -- a special war court set up by Congress and the White House for foreign captives.
By treaty, POWs have to face the same kind of trial as a U.S. soldier accused of war crimes.
In which case, a Pentagon spokesman said, the United States would have three choices -- keep him at Guantánamo without charge, court martial him like an American soldier or send the Yemeni to Afghanistan.
''If he's a POW, Mr. Hamdan could be held indefinitely until the hostilities end,'' said Army Maj. Robert ''Bobby Don'' Gifford, a federal prosecutor called up to reserve duty to serve as a spokesman at the military commissions.
''Or two he would be subjected to prosecution under the UCMJ,'' the Uniformed Code of Military Justice, which calls its trials courts martial.
``Or three he would be returned back to the jurisdiction for prospective investigation and prosecution.''
December 19, 2007 By Carol Rosenberg
In an interim ruling made public Tuesday, a military judge said Osama bin Laden's Yemeni driver, captured in Afghanistan, is entitled to consideration that he may be a prisoner of war -- a status that would collapse his war crimes trial at Guantánamo Bay, Cuba, for a third time.
Navy Capt. Keith Allred, the judge, said in a four-page decision dated Monday that he will next decide whether to declare Salim Ahmed Hamdan, 37, a POW.
His lawyers say the Bush administration got it wrong when they declared him first an ''enemy combatant,'' then later a presumed ``unlawful enemy combatant.''
Hamdan is the former bin Laden driver accused of being a foot soldier for al Qaeda who is now facing his second Military Commission, or war crimes trial. The U.S. Supreme Court ruled last year that an earlier commission format was unconstitutional.
In short, the Hamdan defense team asked Allred to hold a so-called Article V hearing ahead of his trial and declare him a prisoner-of-war captured in a battle because both Afghanistan, where he was captured, and the United States, which invaded the nation are bound by the Geneva Conventions.
Both nations signed the international treaty, which governs how nations that signed the conventions treat captives of war.
He is among 290 or so captives at Guantánamo -- some captured on Afghan soil, others elsewhere. A centerpiece of the legal framework for war-on-terror captives declared al Qaeda not subject to the Geneva Conventions as a stateless, global terror group.
Hamdan defense attorney Joseph McMillan, who was part of a team that took the driver's case to the Supreme Court, called the ruling ``a good development.''
''It is significant, a military judge saying the Geneva Conventions applies and it confers rights on this detainee, which he, the judge, is going to respect,'' said McMillan, a civilian attorney offering free-of-charge legal defense from the Seattle law firm Perkins Coie. ``He's saying that he's going to make the inquiry into whether Mr. Hamdan is a POW.''
In agreeing to include POW as Hamdan's possible status, Allred, a veteran military judge, said in his four-page ruling that a review process designed by the Pentagon was limited in scope.
The Combatant Status Review Tribunal ''did not address his entitlement to Prisoner of War Status, cite or discuss the Geneva Conventions or Article 5, or address the lawfulness of the accused's participation in hostilities,'' Allred wrote.
A Pentagon spokesman said the prosecution had not yet decided whether to appeal the judge's interim ruling.
If Allred decides Hamdan is an ''unlawful enemy combatant,'' his war crimes trial can go forward -- probably this summer.
He's accused of conspiracy and providing material support for terrorism as bin Laden's $200-a-month driver -- crimes punishable by a maximum life prison sentence.
If Allred rules he's a prisoner of war, he can't be tried by commissions -- a special war court set up by Congress and the White House for foreign captives.
By treaty, POWs have to face the same kind of trial as a U.S. soldier accused of war crimes.
In which case, a Pentagon spokesman said, the United States would have three choices -- keep him at Guantánamo without charge, court martial him like an American soldier or send the Yemeni to Afghanistan.
''If he's a POW, Mr. Hamdan could be held indefinitely until the hostilities end,'' said Army Maj. Robert ''Bobby Don'' Gifford, a federal prosecutor called up to reserve duty to serve as a spokesman at the military commissions.
''Or two he would be subjected to prosecution under the UCMJ,'' the Uniformed Code of Military Justice, which calls its trials courts martial.
``Or three he would be returned back to the jurisdiction for prospective investigation and prosecution.''