Osama Bin Laden’s Bodyguard Can be Tried by Military Tribunal
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James Joyner | Friday, July 15, 2005 |
A Federal Appeals Court has sided with the Bush Administration that Osama Bin Laden’s alleged bodyguard can be tried by a military tribunal.
US appeals court says Guantanamo trial can proceed (Reuters)
A federal appeals court ruled on Friday that a Guantanamo prisoner accused of being Osama bin Laden’s bodyguard could be tried by a military tribunal, reversing a lower court decision that such a trial was unlawful and would violate his rights. In a victory for the government, the three-judge panel said the military tribunal process at the U.S. naval base at Guantanamo Bay, Cuba, was the proper forum for Salim Ahmed Hamdan to be tried. If Hamdan were convicted, he could then contest his conviction in federal court after exhausting his options through the military justice system, the panel said.
The ruling means that Hamdan’s case, which was halted in November, can continue. Three other prisoners have also been charged and referred to the commission for the tribunal process. Hamdan has been charged with conspiracy to commit attacks on civilians, murder, destruction of property and terrorism. Hamdan is also accused of being bin Laden’s personal driver in Afghanistan between 1996 and November 2001.
Hamdan’s trial was halted by a district court judge who declared the military tribunal procedures unlawful. U.S. District Judge James Robertson had ruled that the trial could not proceed until a decision had been made on whether Hamdan was a prisoner of war under the Geneva Conventions. The appeals court said that ruling was wrong, and said the Geneva Conventions do not help Hamdan. “One problem for Hamdan is that he does not fit the … definition of a ‘prisoner of war’ entitled to the protection of the convention,” Judge A. Raymond Randolph wrote in a 20-page ruling. “Another problem for Hamdan is that the 1949 Convention does not apply to al Qaeda and its members.”
I would have been shocked had they ruled otherwise.
About the Author: James Joyner is the publisher of Outside the Beltway and the managing editor of the Atlantic Council. He's a former Army officer, Desert Storm vet, and college professor with a PhD in political science from The University of Alabama. He lives just outside the Beltway in Alexandria, Virginia.
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Still, I think we should have labeled them Prisoners of War... according to the Geneva Convention, you can hold POWs until the end of war. And you can't put POWs on trial. In the case of Al Qaeda detainees, I believe this kind of arrangement would suit us better.
People wouldn't be screaming about giving them trials (under Geneva, we simply couldn't), and keeping them indefinitely locked up would also be legitimate.
Branding them as "enemy combatants" leaves too much gray area and makes people demand trials for them and all kinds of other silly b.s.
Calling them POWs just makes so much more sense. Wish we would have done that from the get-go.
People wouldnât be screaming about giving them trials (under Geneva, we simply couldnât), and keeping them indefinitely locked up would also be legitimate.
I believe the Geneva Convention also has something to say about interrogating POWs for intelligence. That was, IIRC, the primary argument against extending POW status to these detainees.
And since the whole idea of the GWOT was supposed to be to prevent further attacks, that kind of settles the question right there.
Cf. &c at TNR:
What does a "competent tribunal" look like? The D.C. Circuit's Court of Appeals has an interesting take. According to today's ruling, which gives a green light to the military commissions being used to try Guantanamo detainees, competency doesn't have to do with judges having legal experience or knowing how many articles are in the Geneva Convention. It doesn't require that a defendant be advised of the evidence against him or provided the right to independent appeal. It doesn't relate to strict standards for admissible evidence--in fact, hearsay and statements obtained under coercion are a-okay. In fact, really the only thing a competent tribunal needs is three commissioned officers, at least one of whom is ranked above captain. And, having those, says the court, "the military commission is such a tribunal." Release the kangaroos!
I believe the Geneva Convention also has something to say about interrogating POWs for intelligence. That was, IIRC, the primary argument against extending POW status to these detainees.
And since the whole idea of the GWOT was supposed to be to prevent further attacks, that kind of settles the question right there.
I understand that, but we really haven't gotten much decent, actionable intelligence out of them anyway. Firmly believe that labeling them POWs would have been the more viable option, that way, we would be completely justified in letting them ROT until the War on Terror is over (which will be, you know, um, NEVER), and we wouldn't have to bother with silly trials. People would look STUPID calling for trials when Geneva specifically prohibits it.
I know that these clowns don't meet the definition of lawful combatants (no uniforms, not part of an organized military, etc), but we have really gotten ourselves into a lot of hot water with the whole world over this "enemy combatant" silliness.
We would have had the moral high ground if we would have labeled them POWs.
Screw the ability to interrogate them. Ain't doin' us much good anyhow.
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