Appeals ruling approves tribunal

Geneva Conventions protections for prisoners of war do not apply to members of the al Qaeda terrorist network, a federal appeals court panel ruled yesterday, giving the Bush administration the green light for a military trial of Osama bin Laden’s personal chauffeur.

In a major victory for President Bush, the three-judge panel of the U.S. Circuit Court of Appeals for the D.C. Circuit said a joint resolution passed by Congress in the wake of the September 11 attacks authorized the president to use military commissions to try enemy combatants, including Yemeni national Salim Ahmed Hamdan.

“Congress authorized the military commission that will try Hamdan,” appeals court Judge A. Raymond Randolph said. “The president found that Hamdan was not a prisoner of war. … Nothing in the regulations, and nothing Hamdan argues, suggests the president is not a ’competent authority’ for these purposes.”

Judge Randolph, appointed in 1990 by the first President Bush, wrote the unanimous ruling. Concurring was Senior Judge Stephen F. Williams, a 1986 Reagan appointee, and Judge John G. Roberts, named to the bench in 2003 by the president.

Held by U.S. military authorities at U.S. Naval Base Guantanamo Bay, Cuba, Hamdan sought last year to bypass the appeals court in a direct appeal to the Supreme Court. He argued that a tribunal was necessary to determine whether detainees were entitled to be considered prisoners of war with legal protections under the 1949 Geneva Conventions.

“We believe the military commission is such a tribunal,” Judge Randolph said.

Hamdan is charged with conspiracy to commit war crimes, murder, terrorism and weapons violations. His attorneys are expected to appeal the decision, either to the full appeals court or to the Supreme Court. Only 15 of 520 Guantanamo detainees have been designated for military commissions and only four have been charged.

Attorney General Alberto R. Gonzales yesterday called the president’s authority to try enemy combatants “a vital part of the global war on terror,” adding that the court’s ruling “reaffirms this critical authority.”

Afghan militia units turned Hamdan over to U.S. military authorities after his 2001 capture in Afghanistan. Two years later, he was ruled an enemy combatant.

The charges against Hamdan include that he served as bin Laden’s personal driver in Afghanistan between 1996 and 2001, which he later admitted in an affidavit. The government contends he delivered weapons to al Qaeda members, drove bin Laden to training camps and safe havens in Afghanistan, and was trained at an al Qaeda terrorist camp.

In November, U.S. District Judge James Robertson stopped Hamdan’s trial, saying he could not be tried by a military commission unless a competent tribunal determined he was not a prisoner of war under the Geneva Conventions. Judge Robertson, named to the bench in 1994 by President Clinton, stopped the government from conducting any further military commission proceedings against Hamdan.

The appeals court ruling noted that even if the Geneva Conventions could be enforced, they would not assist Hamdan because he did not fit the definition of a “prisoner of war.” The panel said Hamdan was not a member of an organization that conducted its operations “in accordance with the laws and customs of war,” noting the Geneva Conventions did not apply to al Qaeda and its members.

In the strongly worded ruling, the panel said Judge Robertson disagreed with Mr. Bush’s view of the Afghan war “apparently because the court thought we were not engaged in a separate conflict with al Qaeda, distinct from the conflict with the Taliban.”

The panel said it had “difficulty understanding the court’s rationale,” noting that Hamdan was captured in Afghanistan in November 2001, two months after the September 11 attacks.

“Under the Constitution, the president has a degree of independent authority to act in foreign affairs,” Judge Randolph said. “For this reason, and others, his construction and application of treaty provisions is entitled to great weight.”

Hamdan’s attorneys asked the Supreme Court directly last year to rule immediately on the case’s merits, saying the government improperly expanded its executive branch authority. Justice Department attorneys argued that Mr. Bush “properly determined” that the Geneva Conventions did not apply to al Qaeda terrorists, that his power to convene military commissions was “inherent in his authority as commander in chief” and that it had been memorialized by Congress.

Also, attorneys for detainees at Guantanamo filed an ethics complaint this week with the medical licensing board in California asking that Capt. John S. Edmondson, who commands the base hospital, be disciplined because the facility provides improper care. The complaint, according to the New York Times, said doctors withheld medicine from prisoners deemed uncooperative with interrogators. The accusations came from four detainees.