GUANTANAMO BAY NAVAL BASE, Cuba – A U.S. federal court has ruled Usama bin Laden's (search) driver was entitled to a hearing to determine whether he is a prisoner of war, a landmark decision that throws into question plans to try alleged terrorists as enemy combatants.
U.S. authorities consider all 550 detainees at the U.S. naval base in Guantanamo Bay (search) "enemy combatants," a status that affords them fewer legal protections than prisoners of war under the Geneva Conventions (search). The prisoners from more than 40 countries have been held for nearly three years, but few have had access to attorneys and only four have been charged.
U.S. District Judge James Robertson's ruling in Washington on Monday halted the pretrial proceedings for Salim Ahmed Hamdan (search), 34, of Yemen, after his lawyers filed a petition challenging his status as an enemy combatant and the commission's jurisdiction.
The Justice Department said it would seek an immediate stay of the ruling and appeal it.
Hamdan was taken captive in Afghanistan and held there for six months before being transferred to the U.S. outpost where he was kept in solitary confinement for eight months.
He is one of the four enemy combatants who has been charged. He faces charges of conspiracy to commit war crimes, murder and terrorism but says he never supported terrorism. He was to have been the first detainee tried in the commissions, or trials, on Dec. 7.
Robertson's decision was the first time a federal court halted legal proceedings before U.S. military commissions, resurrected from World War II. No trials have been held, although tentative trial dates for three other detainees have been offered.
The judge rejected the U.S. government's contention that Hamdan and other detainees are not prisoners of war but enemy combatants. Hamdan was declared an enemy combatant last month by a review tribunal during a hearing from which his lawyer was barred.
"Unless and until a competent tribunal determines that petitioner is not entitled to protections afforded prisoners of war under Article 4 of the Geneva Convention ... he may not be tried by military commission ... ," Robertson said in his ruling.
"There is nothing in this record to suggest that a competent tribunal has determined that Hamdan is not a prisoner of war under the Geneva Conventions."
The court also ruled that unless the military commission guidelines are changed to conform to the Uniform Code of Military Justice, Hamdan cannot be tried by the commissions.
Robertson also ruled Hamdan has the right to confront witnesses that may have given evidence and has a right to see the evidence against him.
The commission rules state defendants can only see the unclassified evidence.
If the Guantanamo detainees are ultimately determined to be prisoners of war entitled to trial by court-martial, they would have available to them different standards for evidence and could appeal up to the Supreme Court.
Justice Department spokesman Mark Corallo said the government would appeal the ruling on the grounds that the Geneva Conventions do not apply to members or affiliates of Al Qaeda.
"We vigorously disagree with the court's decision, and will seek an emergency stay of the ruling and immediately appeal," Corallo said in a statement on the department's Web site.
"We believe the President properly determined that the Geneva Conventions have no legal applicability to members or affiliates of Al Qaeda ... ."
He claimed the ruling "put terrorism on the same legal footing as legitimate methods of waging war."
Hamdan's civilian defense attorney, Neal Katyal, said the ruling could set precedent for all the detainees.
"The judge's decision was designed to cover the case of Mr. Hamdan, but the spirit of it potentially could extend more broadly to perhaps everything that happens at Guantanamo Bay," Katyal said.
Richard Samp, chief attorney for the conservative Washington Legal Foundation, said he expected the administration to win its appeal.
"The president's constitutional authority to try war criminals before military commissions has been well-established through our history," he said.
American Civil Liberties Union executive director Anthony Romero said the decision "sends a clear message that the fight against terrorism does not give the government license to disregard domestic and international law."
After Monday's ruling was passed to him in a note, the commission's presiding officer in Guantanamo, Army Col. Peter E. Brownback, issued an indefinite recess without explanation.
Hamdan, who appeared Monday in the makeshift courtroom in his traditional Yemeni garb of a white flowing robe, has maintained he never supported terrorism, was not an Al Qaeda member and only earned a pittance driving bin Laden.
"These commissions were intended for people like Usama bin Laden, not a mechanic who drove people around," said Hamdan's military-appointed defense lawyer, Lt. Cmdr. Charlie Swift.
Hamdan's petition is one of more than 60 similar challenges, arguing that the commissions are illegal and should not have jurisdiction.
Since a U.S. Supreme Court ruling in June cleared the way for detainees to challenge their detentions in U.S. courts, civilian attorneys have poured into Guantanamo to meet with clients.
Since President Bush ordered the commissions, defense attorneys have said the rules are so vague that a fair trial is impossible.
The review tribunals were set up after the Supreme Court decision, and since then more than 300 cases have been reviewed. Only one man, a Pakistani, has been freed.