Court weighs legality of Guantanamo tribunals

Therefore, he argued, the government was justified in excluding Hamdan from a pretrial voir dire proceeding in which top-secret intelligence was discussed.

Keisler argued that one of the ideas that underlies the Geneva Convention is reciprocity: If the United States were to treat captured enemy soldiers according to civilized rules, then the enemy country would try U.S. solders that it captures likewise. But al-Qaida and the Taliban will not try any American soldiers they capture in a court or according to any military tribunal, he said.

Keisler contended that the U.S. officers who serve on the tribunal conducting Hamdan’s trial could be trusted to give him a fair proceeding, just as fair as if he were tried by federal judges. “The fact that they’re wearing uniforms and you’re wearing robes doesn’t make a difference,” Keisler told judges A. Raymond Randolph, John Roberts, and Stephen Williams.

‘Ad hoc procedures’
Rebutting Keisler, Hamdan’s attorney Neal Katyal assailed the tribunals set up by a Nov. 13, 2001, order of President Bush as “not a system of law. It is a system of ad hoc procedures crafted at will.”

Under Bush’s order, accused al-Qaida members are entitled to “a full and fair trial,” right to counsel and conviction upon the concurrence of two-thirds of the officers serving on the commission.

Reuters file Undated photo of Salim Ahmed Hamdan, released by his attorneys last summer.

Katyal said, “The president is not above the law, and when he prosecutes someone — we’re talking about putting someone in life imprisonment — he’s bound by sources of law. He can’t do what he wants at his whim.”

Article V of the 1949 Geneva accord must apply to Hamdan, Katyal told the court. That provision says that if there’s any doubt as to whether a person captured is a soldier, then he has to be treated as if he is entitled to Geneva protections, including the right not to be put on trial by those who capture him. 

But Judge Randolph questioned whether U.S. courts had any power to enforce Article V. Treaties are often enforced strictly through diplomatic bargaining between two countries and not by U.S. courts.

Katyal said, "The whole point of the Geneva Conventions and a criminal trial is to determine whether or not Mr. Hamdan is al-Qaida. You can’t cut that off ahead of time with a presidential determination carte blanche.”

Undermining defendant's sanity
Katyal and Swift said 10 months of solitary confinement has undermined Hamdan’s sanity.

“Solitary confinement has done him significant damage and will continue to do damage to some point at which he will no longer be able to function,” Swift told reporters outside the courthouse.

Katyal and Swift argued that not allowing Hamdan to stay in the Guantanamo courtroom for part of the voir dire proceeding was a violation of his rights under international law.

Officers whom the government had picked to take part in Hamdan’s trial “had participated in Afghanistan (combat) and/or in his transfer to Guantanamo, and he was not allowed to hear what they had to say on those points,” Swift said.

The Bush administration has held what it calls Combatant Status Review Tribunals, each made up of three U.S. military officers, to determine if each of the 558 detainees held at Guantanamo was an enemy combatant.

The tribunals determined that 38 of the detainees that had been held at Guantanamo were not, in fact, enemy combatants and most of them have been released to their home countries.

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