US District Judge ruled in Hamdan v. Rumsfeld that the Geneva Conventions protect those incarcerated at Guantánamo.

In a decision dated November 8, 2004, US District Judge James Robertson ruled that it is unlawful to try prisoners detained at Guantánamo by the currently constituted Military Commissions. As a result, the Commissions were suspended indefinitely.

The New York based Center for Constitutional Rights or CCR, has released a communique saying that: "In reaching this conclusion, the District Court rejected the Bush Administration's claims that the Geneva Conventions do not apply to people detained at Guantánamo and that there were no restrictions on the type of proceeding that could be created to try the detainees.

As a result of Judge Robertson's ruling, the military commissions at Guántanamo were recessed indefinitely."

"In his ruling on Hamdan v. Rumsfeld, Judge Robertson asserted that the Geneva Conventions - the conventions signed by the United States and countries all over the world to govern the conduct of nations during wartime - protect those incarcerated at Guantánamo.

According to the Court, all those arrested in or around the conflict in Afghanistan must be treated as prisoners of war if there is any doubt as to their status.

Under the Geneva Conventions, prisoners of war must be provided the same legal process as the soldiers in the armed forces of the capturing army. Mr. Hamdan, the petitioner in the case, is, therefore, entitled to have his case heard by a properly convened military court or courts martial as defined under United States law."

Barbara Olshansky, CCR's Deputy Legal Director, said that "The Court's decision makes clear that the President lacked the authority to establish military commissions to try the detainees. He must obey the Geneva Conventions."

The decision issued in the case states that the President's order creating the commissions violated the law because Congress had not authorized the President's action and because the commissions are inconsistent with military law.

According to the CCR, in rejecting the Government's position regarding the applicability of the Geneva Conventions to the conflict in Afghanistan, the Court emphasized that the position of the Bush Administration differs starkly from the behavior of the United States in previous conflicts and has created conditions that place our own soldiers at risk if they are captured during armed conflicts abroad.

Salim Ahmed Hamdan, a citizen of Yemen, petitioned for a writ of habeas corpus, challenging the lawfulness of the Secretary of Defense's plan to try him for alleged war crimes before a military commission convened under special orders issued by the President of the United States, rather than before a court-martial convened under the Uniform Code of Military Justice.

The government moved to dismiss.

Because a competent tribunal has not determined Hamdan to be an offender triable under the law of war, 10 U.S.C. 821, and because in any event the procedures established for the Military Commission by the President's order are "contrary to or inconsistent" with those applicable to courts-martial, 10 U.S.C. 836, Judge James Robertson, of the United States District Court for the District of Columbia, granted Hamdan's petition in part and denied the government's motion.

The background of this case, following Judge Robertson's ruling, is as follows:

"Hamdan was captured in Afghanistan in late 2001, during a time of hostilities in that country that followed the terrorist attacks in the United States on September 11, 2001 mounted by al Qaeda, a terrorist group harbored in Afghanistan.

He was detained by American military forces and transferred sometime in 2002 to the detention facility set up by the Defense Department at Guantanamo Bay Naval Base, Cuba.

On July 3, 2003, acting pursuant to the Military Order he had issued on November 13, 2001, and finding "that there is reason to believe that [Hamdan] was a member of al Qaida or was otherwise involved in terrorism directed against the United States," the President designated Hamdan for trial by military commission.

In December 2003, Hamdan was placed in a part of the Guantanamo Bay facility known as Camp Echo, where he was held in isolation.

On December 18, 2003, military counsel was appointed for him.

On February 12, 2004, Hamdan's counsel filed a demand for charges and speedy trial under Article 10 of the Uniform Code of Military Justice. A few days after, he legal advisor to the Appointing Authority ruled that the UCMJ did not apply to Hamdan's detention.

On April 6, 2004, in the United States District Court for the Western District of Washington, Hamdan's counsel filed the petition for mandamus or habeas corpus that is now before this court.

On July 9, 2004, Hamdan was formally charged with conspiracy to commit the following offenses: "attacking civilians; attacking civilian objects; murder by an unprivileged belligerent; destruction of property by an unprivileged belligerent; and terrorism.

The Department of Defense has implemented the President's Military Order of November 3, 2001 with a series of Military Commission Orders, Instructions, and other documents.

Following the Supreme Court's decision on June 28, 2004, that federal district courts have jurisdiction of habeas petitions filed by Guantanamo Bay detainees, Rasul v. Bush,, and the Ninth Circuit's decision on July 8, 2004, that all such cases should be heard in the District of the District of Columbia, Gherebi v. Bush, the case was transferred here, where it was docketed on September 2, 2004.

Oral argument was held on October 25, 2004.

Hamdan's petition is stated in eight counts:

  • It alleges the denial of Hamdan's speedy trial rights in violation of Article 10 of the Uniform Code of Military Justice, 10 U.S.C. 810 (count 1);
  • challenges the nature and length of Hamdan's pretrial detention as a violation of the Third Geneva Convention (count 2) and of Common Article 3 of the Geneva Conventions (count 3);
  • challenges the order establishing the Military Commission as a violation of the separation of powers doctrine (count 4) and as purporting to invest the Military Commission with authority that exceeds the law of war (count 7);
  • challenges the creation of the Military Commission as a violation of the equal protection guarantees of the Fifth Amendment (count 5) and of 42 U.S.C. 1981 (count 6);
  • and argues that the Military Order does not, on its face, apply to Hamdan (count 8).

The only three facts that are necessary to my disposition of the petition for habeas corpus and of the cross-motion to dismiss are that Hamdan was captured in Afghanistan during hostilities after the 9/11 attacks, that he has asserted his entitlement to prisoner-of-war status under the Third Geneva Convention, and that the government has not convened a competent tribunal to determine whether Hamdan is entitled to such status. All of those propositions appear to be undisputed.

The following are the excerpts from the Judge James Robertson's decision, which set out the reasons for these rulings:

"The well-established doctrine that federal courts will 'normally not entertain habeas petitions by military prisoners unless all available military remedies have been exhausted,' ... is not applicable here...

Controlling Circuit precedent is found in New v. Cohen. In that case, the Court of Appeals noted that, although the abstention rule is often "'framed in terms of 'exhaustion' it may more accurately be understood as based upon the appropriate demands of comity between two separate judicial systems...

The New case identifies an exception to the exhaustion rule that it characterizes as 'quite simple: a person need not exhaust remedies in a military tribunal if the military court has no jurisdiction over him.' That rule... applies here.... I conclude that abstention is neither required nor appropriate as to the issues resolved by this opinion.

No proper determination has been made that Hamdan is an offender triable by military tribunal under the law of war.

The President may establish military commissions only for offenders or offenses triable by military tribunal under the law of war.

The major premise of the government's argument that the President has untrammeled power to establish military tribunals is that his authority emanates from Article II of the Constitution and is inherent in his role as commander-in-chief. None of the principal cases on which the government relies, Exparte Quirin, ... Application of Yamashita ... and Madsen v. Kinsella, ... has so held...

Article 21 of the Uniform Code of Military Justice, 10 U.S.C. 821, ... provides: 'The provisions of this chapter conferring jurisdiction upon courts-martial do not deprive military commissions, provost courts, or other military tribunals of concurrent jurisdiction with respect to offenders or offenses that by statute or by the law of war may be tried by military commissions, provost courts, or other military tribunals.'

If the President does have inherent power in this area [military commissions], it is quite limited. Congress has the power to amend those limits and could do so tomorrow.

Were the President to act outside the limits now set for military commissions by Article 21, however, his actions would fall into the most restricted category of cases identified by Justice Jackson in his concurring opinion in Youngstown Sheet & Tube Co. v. Sawyer,..., in which "the President takes measures incompatible with the expressed or implied will of Congress," and in which the President's power is "at its lowest ebb."

Judge Robertson keeps on saying that "The law of war includes the Third Geneva Convention, which requires trial by court-martial as long as Hamdan's Prisoner Of War status is in doubt."

"The United States has ratified the Geneva Convention Relative to the Treatment of Prisoners-of-War of August 12, 1949 (the Third Geneva Convention). Afghanistan is a party to the Geneva Conventions. The Third Geneva Convention is acknowledged to be part of the law of war.

It is applicable by its terms in "all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them."

That language covers the hostilities in Afghanistan that were ongoing in late 2001, when Hamdan was captured there.

The government does not dispute the proposition that prisoners of war may not be tried by military tribunal.

Its position is that Hamdan is not entitled to the protections of the Third Geneva Convention at all, and certainly not to prisoner-of-war status, and that in any event the protections of the Third Geneva Convention are not enforceable by way of habeas corpus.

The government's first argument that the Third Geneva Convention does not protect Hamdan asserts that Hamdan was captured, not in the course of a conflict between the United States and Afghanistan, but in the course of a "separate" conflict with al Qaeda.

...The government's attempt to separate the Taliban from al Qaeda for Geneva Convention purposes finds no support in the structure of the Conventions themselves, which are triggered by the place of the conflict, and not by what particular faction a fighter is associated with.

The government next argues that, even if the Third Geneva Convention might theoretically apply to anyone captured in the Afghanistan theater, members of al Qaeda such as Hamdan are not entitled to POW status because they do not satisfy the test established by Article 4(2) of the Third Geneva Convention - they do not carry arms openly and operate under the laws and customs of war.

We know this, the government argues, because the President himself has determined that Hamdan was a member of al Qaeda or otherwise involved in terrorism against the United States ... Presidential determinations in this area, the government argues, are due "extraordinary deference."

Article 5 of the Third Geneva Convention provides: "Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4 such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal...

The government's position that no doubt has arisen as to Hamdan's status does not withstand scrutiny.

Hamdan has appeared before the Combatant Status Review Tribunal, but the CSRT was not established to address detainees' status under the Geneva Conventions. It was established to comply with the Supreme Court's mandate in Hamdi ... to decide "whether the detainee is properly detained as an enemy combatant" for purposes of continued detention.

The government's legal position is that the Combatant Status Review Tribunal (CSRT) determination that Hamdan was a member of or affiliated with al Qaeda is also determinative of Hamdan's prisoner-of-war status, since the President has already determined that detained al Qaeda members are not prisoners-of-war under the Geneva Conventions. The President is not a "tribunal," however.

The government must convene a competent tribunal ... and seek a specific determination as to Hamdan's status under the Geneva Conventions. Until or unless such a tribunal decides otherwise, Hamdan has, and must be accorded, the full protections of a prisoner-of-war.

The government's next argument, that Common Article 3 does not apply because it was meant to cover local and not international conflicts, is also rejected.

Article 3 of the Third Geneva Convention is called "Common Article 3" because it is common to all four of the 1949 Geneva Conventions. It provides:

'In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be found to apply, as a minimum, the following provisions:

(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be sickness, wounds, detention, or any other cause, shall in all circumstances by treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.

To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the abovementioned persons:

(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

(b) taking of hostages;

(c) outrages upon personal dignity, in particular, humiliating and degrading treatment;

(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

(2) The wounded and sick shall be collected and cared for

An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict.

The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention.

The application of the preceding provisions shall not affect the legal status of the Parties to the conflict"

It is universally agreed ... that Common Article 3 embodies "international human norms."... The International Court of Justice has stated it plainly: "There is no doubt that, in the event of international armed conflicts . . . [the rules articulated in Common Article 3] . . . constitute a minimum yardstick, in addition to the more elaborate rules which are also to apply to international conflicts;

...and they are rules which, in the Court's opinion, reflect what the court in 1949 called 'elementary considerations of humanity'."

The government has asserted a position starkly different from the positions and behavior of the United States in previous conflicts, one that can only weaken the United States' own ability to demand application of the Geneva Conventions to Americans captured during armed conflicts abroad.

Amici remind us of the capture of U.S. Warrant Officer Michael Durant in 1993 by forces loyal to a Somali warlord.

The United States demanded assurances that Durant would be treated consistently with protections afforded by the Convention, even though, if the Convention were applied as narrowly as the government now seeks to apply it to Hamdan, "Durant's captors would not be bound to follow the convention because they were not a 'state'".

The government's putative trump card is that Hamdan's rights under the Geneva Conventions, if any, and whatever they are, are not enforceable by this Court ... because the Third Geneva Convention is not "selfexecuting" and does not give rise to a private cause of action.

Treaties made under the authority of the United States are the supreme law of the land (U.S. Const. art. VI, cl. 2). United States courts are bound to give effect to international law and to international agreements of the United States unless such agreements are "non-self-executing."...

A treaty is "non-self executing" if it manifests an intention that it not become effective as domestic law without enactment of implementing legislation; or if the Senate in consenting to the treaty requires implementing legislation; or if implementing legislation is constitutionally required.

...It is quite clear from the legislative history of the ratification of the Geneva Conventions that Congress carefully considered what further legislation, if any, was deemed "required to give effect to the provisions contained in the four conventions"... and found that only

four provisions required implementing legislation...

Because the Geneva Conventions were written to protect individuals, because the Executive Branch of our government has implemented the Geneva Conventions for fifty years without questioning the absence of implementing legislation, because Congress clearly understood that the Conventions did not require implementing legislation except in a few specific areas, and because nothing in the Third Geneva Convention itself manifests the contracting parties' intention that it not become effective as domestic law without the enactment of implementing legislation, I conclude that, insofar as it is pertinent here, the Third Geneva Convention is a self-executing treaty.

I further conclude that it is at least a matter of some doubt as to whether or not Hamdan is entitled to the protections of the Third Geneva Convention as a prisoner of war and that accordingly he must be given those protections unless and until the "competent tribunal" referred to in Article 5 concludes otherwise. It follows from those conclusions that Hamdan may not be tried for the war crimes he is charged with except by a court-martial duly convened under the Uniform Code of Military Justice."

"In at least one critical respect, the procedures of the Military Commission are fatally contrary to or inconsistent with those of the Uniform Code of Military Justice.

The Military Commission is remarkably different from a court-martial ... in two important respects. The first has to do with the structure of the reviewing authority after trial; the second, with the power of the appointing authority or the presiding officer to exclude the accused from hearings and deny him access to evidence presented against him.

Petitioner's challenge to the first difference is unsuccessful ... If Hamdan is triable by any military tribunal, the fact that final review of a finding of guilt would reside in the President or his designee is not "contrary to or inconsistent with" the Uniform Code of Military Justice.

The second difference between the procedures adopted for the Miliary Commission and those applicable in a court martial convened under the Uniform Code of Military Justice is far more troubling.

Under the Secretary of Defense's regulations, the Military Commission must "[h]old open proceedings except where otherwise decided by the Appointing Authority or the Presiding Officer. ... The accused himself may be excluded from proceedings ... and evidence may be adduced that he will never see (because his lawyer will be forbidden to disclose it to him).

Thus, for example, testimony may be received from a confidential informant, and Hamdan will not be permitted to hear the testimony, see the witness's face, or learn his name. If the government has information developed by interrogation of witnesses in Afghanistan or elsewhere, it can offer such evidence in transcript form, or even as summaries of transcripts.

The Presiding Officer or the Appointing Authority may receive it in evidence if it meets the "reasonably probative" standard but forbid it to be shown to Hamdan... As counsel for Hamdan put it at oral argument, portions of Mr. Hamdan's trial can be conducted "outside his presence.

... At least in this critical respect -- the rules of the Military Commission are fatally "contrary to or inconsistent with" the statutory requirements for courts-martial convened under the Uniform Code of Military Justice, and thus unlawful. In a general court-martial conducted under the Uniform Code of Military Justice, the accused has the right to be present during sessions of the court.

Counsel made the unrefuted assertion at oral argument that Hamdan has already been excluded from the voir dire process and that "the government's already indicated that for two days of his trial, he won't be there. And they'll put on the evidence at that point...

Counsel's appropriate concern is not only for the established right of his client to be present at his trial, but also for the adequacy of the defense he can provide to his client. The relationship between the right to be present and the adequacy of defense is recognized by military courts...

A provision that permits the exclusion of the accused from his trial for reasons other than his disruptive behavior or his voluntary absence is indeed directly contrary to the Uniform Code of Military Justice's right to be present. I must accordingly find on the basis of the statute that, so long as it operates under such a rule, the Military Commission cannot try Hamdan.

The court concludes that:

"It is now clear, by virtue of the Supreme Court's decision in Hamdi, that the detentions of enemy combatants at Guantanamo Bay are not unlawful per se. The granting (in part) of Hamdan's petition for habeas corpus accordingly brings only limited relief. The order that accompanies this opinion provides:

(1) that, unless and until a competent tribunal determines that Hamdan is not entitled to POW status, he may be tried for the offenses with which he is charged only by court martial under the Uniform Code of Military Justice;

(2) that, unless and until the Military Commission's rule permitting Hamdan's exclusion from commission sessions and the withholding of evidence from him is amended so that it is consistent with and not contrary to Uniform Code of Military Justice Article 39, Hamdan's trial before the Military Commission would be unlawful; and

(3) that Hamdan must be released from the pre-Commission detention wing of Camp Delta and returned to the general population of detainees, unless some reason other than the pending charges against him requires different treatment. Hamdan's remaining claims are in abeyance."

Source: Center for Constitutional Rights, Hamdan v. Rumsfeld, 04-CV-1519 and Radio Nizkor, 14Nov04

Documentation Note: For further information on the Question of the Guantánamo Detainees you may listen to Prof. Richard Wilson's "The situation of Detainees at Guantanamo Bay and the Inter-American Human Rights Commission Response" and "Update on the situation of the detainees in Guantanamo Bay and the current status of legal issues relating to this matter".

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