Guantanamo Tribunals Derail
As Judge Invokes
Geneva Convention

Jess Bravin, Wall Street Journal

GUANTANAMO BAY, Cuba — A federal judge ruled the Geneva
Conventions protect prisoners captured in Afghanistan and
that suspected terrorists can't be tried before military
commissions that deny defendants the right to see evidence
against them.

The order stunned military officials here and halted a
hearing under way for Salim Hamdan, a Yemeni who admits
serving as Osama bin Laden's driver but denies involvement
with terrorism.The decision by District Judge James Robertson in
Washington applies to Mr. Hamdan but implicates all
detentions at this remote naval base, now housing about 550
prisoners. The Justice Department said it would seek an
emergency stay to enable proceedings to resume while it
appeals. "By conferring protected legal status under the
Geneva Conventions on members of al Qaeda, the judge has
put terrorism on the same legal footing as legitimate
methods of waging war," a Justice Department spokesman
said.

Minutes before Judge Robertson issued his ruling, lawyers
for another commission defendant, accused al Qaeda
paymaster Ibrahim al-Qosi, had filed a similar petition in
federal court in Washington contending that the military
commission is illegal. The suit also claims Mr. Qosi, a
44-year-old from Sudan, has been subjected to "a pervasive
atmosphere of fear, intimidation and humiliation." The
Defense Department didn't have an immediate response to the
Qosi suit.

After the war on terror began in late 2001, Bush
administration officials debated whether the U.S. should
deviate from following the Geneva Conventions — a 1949
treaty establishing basic rights for soldiers and civilians
during armed conflict. Secretary of State Colin Powell had
urged against such a policy change in early 2002, but Mr.
Bush sided with White House Counsel Alberto Gonzales, who
advised that the war on terrorism rendered much of the
treaty "obsolete."

In November 2001, President Bush signed an order
authorizing military commissions to try suspected
terrorists for war crimes, promising "full and fair" trials
but denying them several due-process rights afforded in
both civilian courts and courts-martial. In February 2002,
Mr. Bush issued a blanket finding that no prisoners
captured in Afghanistan would have Geneva Convention
protections, such as freedom from coercive interrogations
and the right, if prosecuted, to the same type of
proceeding that would be used against U.S. soldiers.

Bush administration lawyers envisioned Guantanamo Bay as an
offshore prison where such foreign captives could be
interrogated, tried and punished outside both the federal
court system and the Geneva Conventions.

In his 45-page opinion, Judge Robertson rejected the
government's position that the president, as commander in
chief, inherently holds "untrammeled power to establish
military tribunals" without specific authorization from
Congress. The judge also dismissed the administration's
claim that the Geneva Conventions had no force in the
Afghan conflict because it was conducted against a
terrorist organization and its allied militia, rather than
a conventional army.

"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," wrote Judge Robertson, a former Navy officer.
"Other governments have already begun to cite the United
States' Guantanamo policy to justify their own repressive
policies."

Specifically, the judge ruled the Geneva Conventions "are
triggered by the place of the conflict, and not by what
particular faction a fighter is associated with." Since
Afghanistan is a party to the treaty, combatants within its
territory could be stripped of protections only through
procedures the treaty itself provides. None had been
followed for Mr. Hamdan, so he was entitled to be treated
as a prisoner of war, the judge wrote. The judge also ruled
the Bush administration's military commission violated the
convention, since it offers a lesser degree of rights to
enemy prisoners than those that would be afforded to U.S.
soldiers facing trial.

The order bars proceedings until Mr. Hamdan's POW status is
properly determined and military-commission rules are
amended to comply with provisions of the Uniform Code of
Military Justice.

Mr. Hamdan, 34, "was ecstatic that Judge Robertson would
stand by him in his demand for a fair trial," said his
Pentagon-appointed defense attorney.