- The Washington Times - Friday, July 18, 2008

The first military tribunal at Guantanamo Bay is set to begin Monday after a last-minute plea Thursday by attorneys for a detainee failed to persuade a federal judge to stop the process.

U.S. District Judge James Robertson ruled that a 2006 law authorizing the military courts would allow Osama bin Laden’s former driver, Salim Hamdan, to seek the intervention of the civilian courts only if he appeals a conviction.

“Courts should respect the balance that Congress has struck,” Judge Robertson said. “Hamdan is to face a military commission designed by Congress based on guidelines handed down by the Supreme Court.”

Judge Robertson’s ruling was a victory for the Bush administration, which plans to prosecute accused Sept. 11 mastermind Khalid Sheikh Mohammed and about 80 other suspects in the 2001 attacks.

Attorneys for Mr. Hamdan had invoked a Supreme Court ruling last month that said Guantanamo detainees - many of whom have been held for years without a trial - can challenge their imprisonment in federal court.

The lawyers argued that the tribunals at Guantanamo should be delayed while they challenged the legality of the military trial system.

Congress authorized the special court under the Military Commission Act of 2006. It allows trials of detainees with evidence that would not be allowed in regular U.S. courts, such as hearsay and coerced testimony.

Hearsay refers to statements of witnesses made out-of-court, and some of the evidence against the detainees appears to have been coerced through harsh interrogation techniques, according to their attorneys.

Mr. Hamdan’s attorneys said he was subjected to the military’s “Operation Sandman,” in which his sleep was interrupted hourly for 50 days.

“We don’t know what rule book even applies to these [military trial] commissions,” said Neal Katyal, attorney for Mr. Hamdan.

Secrecy and new legal procedures leave too much uncertainty about whether the rights of detainees are protected, he said.

“It is a process unlike any other in American history,” Mr. Katyal said.

Mr. Hamdan was captured during the U.S. invasion of Afghanistan, where he purportedly was transporting missiles to a battle area to be used against American soldiers. He denies involvement with terrorists.

Mr. Katyal, a Georgetown University Law Center professor, represented him in the 2006 Supreme Court case of Hamdan v. Rumsfeld, in which the court ruled that military commissions arranged by the Bush administration to try detainees at Guantanamo “violate both the [Uniform Code of Military Justice] and the four Geneva Conventions.”

The Geneva Conventions refer to international treaties that set standards for treatment of war prisoners.

About 270 men are being held at the Guantanamo prison.

Justice Department attorneys argued that the detainees’ rights would be protected during trials at Guantanamo by the Military Commission Act.

“There’s no reason to believe a military judge would not be protective of a detainee’s rights,” said John O’Quinn, deputy U.S. attorney general.



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