A Closer Look at the Hamdan Trial

On June 12, when the Supreme Court ruled, in Boumediene v. Bush, that the prisoners at Guantánamo had constitutional habeas corpus rights, it was not immediately clear if the decision would have an impact on the Military Commissions at Guantánamo, the alternative legal system for trying "War on Terror" prisoners that was stealthily established in November 2001 (bypassing the Justice Department, the State Department and the National Security Agency) by Vice President Dick Cheney and his chief counsel David Addington.

Logic dictated that Boumediene would extend to those facing trial by Military Commission, because, under the terms of the Military Commissions Act (MCA), which was passed by Congress after the Supreme Court struck down the first version of the Commissions as illegal in June 2006, prisoners could only be put forward for trial by Military Commission if they had been designated as "enemy combatants" in the Combatant Status Review Tribunals (CSRTs), the administrative review process established at Guantánamo in 2004.

As with justice, however, logic is in short supply in the executive's approach to terror suspects, who have been deprived of the protections of the Geneva Conventions, tortured, coerced or bribed to make false confessions, and, essentially, designated as "enemy combatants" by Presidential whim alone, with the intention, in most cases, of holding them forever without charge or trial.

So here's the problem: In Boumediene, the Supreme Court ruled that the habeas-stripping provisions of the MCA and its predecessor, 2005's Detainee Treatment Act (DTA), which provided for limited review of the prisoners' CSRTs, did not provide an adequate substitute for habeas, and instructed the lower courts to allow the prisoners' habeas cases to proceed. This process is now underway, as I reported here, but those facing trial by Military Commission were not necessarily included, even though their cases involve the same problems relating to habeas, the DTA and the MCA as all the other cases.

On July 3, lawyers for Salim Hamdan, one of 20 prisoners facing trial by Military Commission, raised this unresolved issue, filing legal papers asking District Judge James Robertson to delay the start of Hamdan's trial, and arguing that he should be allowed to challenge his detention in a federal court, based on the Supreme Court's Boumediene verdict. In a 46-page court filing, his lawyers wrote, "This case raises the question of whether the constitutional right to habeas corpus can be rendered illusory by subjecting an individual to an unconstitutional trial by military commission. Trying Hamdan under a dubious regime whose very legality has been called into question would reduce the legitimacy of the proceedings in this country and in the eyes of the world."

Last Thursday, Judge Robertson heard oral arguments from government lawyers and from Hamdan's civilian lawyer, Neal Katyal. Robertson and Katyal had met before. In 2004, in what the New York Times described as "a theatrically timed federal court injunction," Judge Robertson called a halt to the Commissions, on the basis that the CSRTs did not reach the level of a "competent tribunal," as demanded by the Geneva Conventions. He also ruled that, until a "competent tribunal" determined that Hamdan was not a Prisoner of War (PoW), as defined and protected by the Geneva Conventions, he had the right to be tried under the same judicial system as U.S. soldiers, and added that, even if he was determined not to be a PoW, the Military Commissions as they stood were inadequate and would not be allowed to proceed until their rules were revised to accord with the federal laws governing the trial of soldiers. In a final blow to the administration, Judge Robertson specifically addressed Hamdan's detention in Guantánamo, ruling that he was not to be held indefinitely in solitary confinement and should be returned to the rest of the prisoner population.