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11/09/2004:

"Guantanamo Trial Is Ruled Unlawful"

WASHINGTON — The first military commission trial at Guantanamo Bay, Cuba, was halted Monday after a federal judge here ruled the proceedings invalid under U.S. and international law — dealing a blow to the legal process set up by the Bush administration to handle accused terrorists.

The case against Salim Ahmed Hamdan was suspended after U.S. District Judge James Robertson ruled that the Yemeni man had been denied due process.

The ruling affects all of the nearly 500 detainees from Afghanistan at Guantanamo.

"The practical outcome of this is that the government is not going to be able to maintain this system," said Eric M. Freedman, a Hofstra University law school professor who has challenged the military commissions in court on behalf of two detainees.

Robertson ruled that the Bush administration had not followed a lawful procedure in declaring Hamdan an "enemy combatant" who was not entitled to protections and privileges under the Geneva Convention. The "combatant status review tribunals" — used by the Pentagon to decide whether to hold detainees — are not a "competent" court to make such a determination, Robertson said. And the military commission process, which prosecutes detainees using secret evidence and unnamed witnesses, "could not be countenanced in any American court," the judge ruled.

"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 Robertson, who served as a lieutenant in the Navy between 1959 and 1964 and was appointed a judge in 1994 by President Clinton.

To correct the system, Robertson said, the government must recognize the detainees as prisoners of war under the Geneva Convention until it has a legally valid way to declare they are not.
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