WASHINGTON – A federal appeals court Thursday questioned whether a Guantanamo Bay Naval Base (search) detainee has a right to be present for his entire trial, giving the Bush administration hope it may use military commissions to try prisoners there.
The three-judge panel reacted strongly when a lawyer for Salim Ahmed Hamdan (search) told them "it makes no sense to say that we adhere to international law and the first thing we do at the beginning of a trial is violate a canon of international law."
Legal systems of other countries don't allow a defendant to be present for all parts of a trial, Appeals Judge A. Raymond Randolph replied. Judge John Roberts added that some countries don't allow cross-examination of witnesses.
"This is the law in Rwanda," but should not be in the United States, replied the detainee's lawyer, Charles Swift.
The question is crucial to the future of the government's military commissions, which President Bush authorized shortly after the Sept. 11 (search) attacks to deal with alleged terrorists and their associates. Much of the evidence in military commission cases likely would be classified and the government does not want the defendants to have access to it for national security reasons.
Hamdan, who was a personal driver for Al Qaeda terrorist leader Usama bin Laden (search), won a favorable ruling in November from U.S. District Judge James Robertson, a Clinton appointee who brought the military commissions to a halt by saying their procedures were unlawful.
Last November's ruling is "an extraordinary intrusion into the executive's power" to defend the United States, the government said.
At the heart of the legal battle is the fact that Bush has declared international treaty protections do not apply to Salim Ahmed Hamdan and all others deemed by the U.S. government to be linked to Al Qaeda.
The judge's decision five months ago halted the trial of Hamdan, who joined bin Laden in 1996, the government says, serving as his personal driver and delivering weapons and ammunition to Al Qaeda.
Hamdan's lawyers say he is an innocent civilian who was not part of Al Qaeda and whose only crime was working for a very bad employer. A driver and mechanic with a fourth-grade education, Hamdan left his home country of Yemen to find a better job, his lawyers say, and he was captured by bounty hunters in Afghanistan , sold to the Americans and shipped to Guantanamo Bay, Cuba.
Now Hamdan would be barred from part of his trial, while the government presents classified evidence that only his attorneys would be allowed to see. The government says national security necessitates the step, leading to the judge's ruling that the Bush administration's military commissions are unlawful.
"The right to be present at all stages in criminal proceedings is fundamental, guaranteed by military law, common law, constitutional law and international law," Hamdan's attorneys say in an appeals court filing.
During 11 months in solitary confinement, Hamdan exhibited symptoms consistent with acute mental injury including suicidal inclinations, his lawyers say.
Assigned an attorney at the prosecution's request for the limited purpose of negotiating a plea, Hamdan refused to plead guilty to anything and his demand for a speedy court martial in a military court was rejected. In July 2004, 32 months after his capture in Afghanistan, he was charged with conspiracy to engage in terrorism.
The government refuses to give Hamdan a court martial in military court. There, unlike the Pentagon's military commissions, federal law enables defendants to be present for the entire trial.
Hamdan's lawyers are making their arguments to an appeals court panel that includes two judges who denied detainees access to U.S. civilian courts two years ago.
The three-judge panel wrote then, "If the Constitution does not entitle the detainees to due process, and it does not, they cannot invoke the jurisdiction of our courts to test the constitutionality or the legality of restraints on their liberty."
However, the Supreme Court opened the door to civilian courts for the detainees last June, ruling that the president lacks the authority to hold enemy combatants indefinitely with no access to lawyers or the ability to challenge their detention.