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Unnamed prisoners (42)
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Torture, rendition, and other abuses against captives in Iraq, Afghanistan, and elsewhere

 
  

Project: Prisoner abuse in Iraq, Afghanistan and elsewhere

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Mid-September 2001

       One of the main questions on the minds of government lawyers is how to criminally prosecute captured members of al-Qaeda and the Taliban. William P. Barr, a former attorney general, suggests to Timothy E. Flanigan, deputy White House counsel, a few days after 9/11 to use so-called military commissions. Barr first thought of using such military commissions to try the suspects of the bombing of Pan Am Flight 103 over Lockerbie, Scotland, but this was rejected at the time. “I thought it was a great idea,” Flanigan said. [New York Times, 10/24/2004]
People and organizations involved: William P. Barr, Timothy E. Flanigan
          

Before September 23, 2001

       Less than two weeks after 9/11, White House Counsel Alberto Gonzales sets up an interagency group to design a strategy for prosecuting terrorists, and specifically asks it to suggest military commissions as one viable option for prosecution of suspected terrorists. Pierre-Richard Prosper from the State Department, assigned to lead the group, recalls, “We were going to go after the people responsible for the attacks, and the operating assumption was that we would capture a significant number of al-Qaeda operatives.” In addition to the use of military commissions, the group begins to work out three other options: ordinary criminal trials, military courts-martial, and tribunals with a mixed membership of civilians and military personnel. The option of a criminal trial by an ordinary federal court is quickly brushed aside for logistical reasons, according to Prosper. “The towers were still smoking, literally. I remember asking: Can the federal courts in New York handle this? It wasn't a legal question so much as it was logistical. You had 300 al-Qaeda members, potentially. And did we want to put the judges and juries in harm's way?” Despite the interagency group's willingness to study the option of military commissions, lawyers at the White House, according to reporter Tim Golden, grow impatient with the group. Some of its members are seen to have “cold feet.” [New York Times, 10/24/2004]
People and organizations involved: Scott McClellan, Beth Nolan, John Ashcroft, Alberto R. Gonzales, Jay S. Bybee
          

Late October 2001

       White House lawyers have become impatient with the interagency group's (see Before September 23, 2001) less than full endorsement of the use of military commissions to try suspected terrorists. By late October, Timothy E. Flanigan takes the task of designing a strategy for prosecuting terrorists away from the group and proceeds to focus on military commissions as the only preferable option. The White House lawyers now work more in secret, excluding many agencies and most of the government's experts in military and international law, but together with the lawyers of the Office of Legal Counsel (OLC), with the intention of drafting a presidential military order. [New York Times, 10/24/2004] There is a remarkable secrecy surrounding the drafting process. Both Attorney General John D. Ashcroft and his deputy, Larry D. Thompson, are closely consulted. But the head of the Justice Department's Criminal Division, Michael Chertoff is kept out of the loop. Secretary of Defense Donald H. Rumsfeld is informed through his general counsel, Williams J. Haynes II. Other Pentagon experts, however, are excluded. [New York Times, 10/24/2004] When the order is signed many expressed surprise. “That came like a bolt from the blue,” a former Pentagon official says. “Neither I nor anyone I knew had any insight, any advance knowledge, or any opportunity to comment on the president's military order.” [The Guardian, 6/9/2004] “I can't tell you how compartmented things were,” retired Rear Adm. Donald J. Guter, the Navy's Judge Advocate General, later recalls. “This was a closed administration.” [New York Times, 10/24/2004]
People and organizations involved: Donald J. Guter, William J. Haynes, Donald Rumsfeld, Michael Chertoff, Larry D. Thompson, John Ashcroft
          

November 5, 2001

       In conjunction with the Federalist Society, the Heritage Foundation publishes a legal paper that appears to reflect much of the thinking at this time of prominent White House and Justice Department lawyers. The paper espouses the use of military commissions, arguing that this will offer the government several advantages. “In particular,” the paper's authors argue, “trials before military tribunals need not be open to the general public and they may be conducted on an expedited basis, permitting the quick resolution of individual cases and avoiding the disclosure of highly sensitive intelligence material, which would have to be made public in an ordinary criminal trial.” The disadvantage of a normal trial would be that they would be limited by constitutional rules with regard to “what can be done to protect classified information.” In addition, in “federal district courts, the government has an obligation under Article III and the Sixth Amendment to conduct a ‘public trial’ and present to the jury, in open court, the facts on which it is relying to establish a defendant's guilt.” But the authors do acknowledge that “[t]he use of military commissions with respect to individuals not regularly enrolled in a military force, represents a clear departure from normal legal processes and some of America's most fundamental judicial traditions.” Surprisingly, the Geneva Conventions of 1949 are not mentioned even once. Almost in passing, the authors suggest an option that is to become reality. “[I]t is likely,” they write, “that the Supreme Court would allow the trial overseas by military commission of al-Qaeda members captured in Afghanistan, regardless of how it would treat defendants in this country.” [The Heritage Foundation, Legal Memorandum, Executive Summary, No. 3, 11/5/2001; The Heritage Foundation, Legal Memorandum, No. 3, 11/5/2001] It is an indication that by this time the government contemplates using the US Naval Station at Guantanamo Bay, which is formally on Cuban soil, to accommodate suspected al-Qaeda and Taliban detainees.
          

November 6, 2001

       The Geneva Conventions are mentioned in a memo issued the day after the publication of the Heritage Foundation paper (see November 5, 2001), but only to suggest that suspected terrorists should not be entitled to the rights enclosed in them. Patrick F. Philbin, a deputy in the OLC, sends a confidential 35-page memo to the White House legal counsel Gonzales, arguing that the president, as Commander-in-Chief, has “inherent authority” to establish military commissions without authorization from the US Congress. The 9/11 attacks are themselves “plainly sufficient” to justify the application of the laws of war. Furthermore, putting terrorists on trial under the laws of war, “does not mean,” according to Philbin, “that terrorists will receive the protections of the Geneva Conventions or the rights that laws of war accord to lawful combatants.” The Philbin memo will serve as a basis for a Presidential order (see November 13, 2001) establishing the option of military commissions, which will be drafted by Deputy White House Counsel Timothy E. Flanigan and David S. Addington, the legal counsel to Vice President Cheney. [New York Times, 10/24/2004]
People and organizations involved: Alberto R. Gonzales, Patrick F. Philbin
          

November 9, 2001

       William J. Haynes II, Rumsfeld's general counsel, shows a draft of a Presidential Order establishing military commissions to Col. Lawrence J. Morris, the head of a Pentagon legal team that has so far been excluded from the discussion on how suspected terrorists should be prosecuted. Col. Morris is given just 30 minutes to read the draft but is not allowed to keep a copy or even take notes. The next day, the Army's Judge Advocate General, Maj. Gen. Thomas J. Romig, hastily convenes a meeting of Pentagon lawyers to prepare suggestions for improvement, with an eye on bringing the order closer to existing military legal standards. The final order, however, includes none of the lawyer's recommendations. “They hadn't changed a thing,” a military official will later recall. [New York Times, 10/24/2004]
People and organizations involved: William J. Haynes, Lawrence J. Morris
          

November 10, 2001

       The Army's Judge Advocate General, Maj. Gen. Thomas J. Romig, hastily convenes a meeting of Pentagon lawyers to prepare suggestions for improving a draft Presidential Order establishing military commissions (see November 9, 2001), with an eye on bringing the order closer to existing military legal standards. The final order, however, will include none of the lawyer's recommendations. “They hadn't changed a thing,” a military official will later recall. [New York Times, 10/24/2004]
People and organizations involved: Thomas J. Romig
          

November 10, 2001

       Vice-President Cheney leads a meeting at the White House to put the finishing touches on a draft Presidential Order establishing military commissions (see November 9, 2001). The meeting includes Ashcroft, Haynes, and the White House lawyers, but leaves out senior officials of the State Department and the National Security Council. Two officials later claim Cheney advocated withholding the document from National Security Adviser Condoleezza Rice and Secretary of State Colin Powell. According to a former official, Cheney discusses the draft with Bush over lunch a few days later. [New York Times, 10/24/2004]
People and organizations involved: George W. Bush, Condoleezza Rice, Colin Powell, William J. Haynes, John Ashcroft, Richard ("Dick") Cheney
          

November 13, 2001

       President Bush issues a 3-page executive order authorizing the creation of military commissions to try non-citizens alleged to be involved in international terrorism. The president will decide which defendants will be tried by military commissions. Defense Secretary Rumsfeld will appoint each panel and set its rules and procedures, including the level of proof needed for a conviction. A two-thirds vote is needed to convict a defendant and impose a sentence, including life imprisonment or death. Only the president or the secretary of defense has the authority to overturn a decision. There is no provision for an appeal to US civil courts, foreign courts, or international tribunals. Nor does the order specify how many judges are to preside on a tribunal or what qualifications they must have. [New York Times, 10/24/2004; US Department of Defense, 11/13/2001; Washington Post, 11/14/2001, pp A01] The order also adopts a rule of evidence stemming from the 1942 Supreme Court case of United States v. Quirin that says evidence shall be admitted “as would ... have probative value to a reasonable person.” This rule, according to Judge Evan J. Wallach, “was repeatedly used [in World War II and in the post-war tribunals] to admit evidence of a quality or obtained in a manner which would make it inadmissible under the rules of evidence in both courts of the United States or courts martial conducted by the armed forces of the United States.” [9/29/2004] Evidence derived from torture, for example, could theoretically be admitted. It should be noted that the order is unprecedented among presidential directives in that it takes away some individuals' most basic rights, while claiming to have the power of law, with the US Congress not having been so much as consulted. During the next few years, lawyers will battle over the exact proceedings of the trials before military commissions, with many of the military lawyers arguing for more rights for the defendants and with Haynes, and the Justice and White House lawyers, Gonzales, Addington, and Flanigan, taking a more restrictive line. [New York Times, 10/24/2004] Both Rice and Powell were left outside of the circle during the drafting of this directive (see November 6, 2001) (see November 9, 2001). Rice is reportedly angry about not be informed. [New York Times, 10/24/2004]
People and organizations involved: George W. Bush, David S. Addington, Timothy E. Flanigan, Alberto R. Gonzales, Condoleezza Rice, Colin Powell, Donald Rumsfeld, William J. Haynes  Additional Info 
          

November 19, 2001

       Scorching criticism of President Bush's Executive Order (see November 13, 2001) comes from the Center for National Security Studies, which says it “violates separation of powers as the creation of military commissions has not been authorized by the Congress and is outside the president's constitutional powers.” The order is also an “unconstitutional attempt to suspend the writ of habeas corpus.” [Center for National Security Studies, 11/19/2001] Law professor Kathleen Clark similarly states: “These military tribunals are troubling in many respects, particularly in their denial of basic due process protection for defendants. But even apart from this question of civil liberties, this presidential order is unconstitutional because the president lacks the authority under the constitution and statutory law to create this kind of court.” [11/19/2001]
People and organizations involved: US Congress  Additional Info 
          

January 21, 2002

       White House lawyers visit Guantanamo Bay. On the flight back, Alberto Gonzales agrees with David Addington that all Guantanamo detainees should be designated eligible for trial by military commission under the president's November 13 Military Order (see January 20, 2002). [New York Times, 10/24/2004]
People and organizations involved: Alberto R. Gonzales, David S. Addington
          

March 21, 2002

       Secretary of Defense Donald Rumsfeld signs Military Commission Order No. 1 prescribing the procedures of the military commission trials. The order says a two-third majority is required to determine a sentence and unanimity for applying the death penalty. But it fails to provide for the possibility of appeals. It also says evidence submitted before a commission “shall” be declared admissible if the presiding officer or a majority of the commission members consider that it “would have probative value to a reasonable person.” [Sources: Section 6.D.1, Military Commission Order No. 1., 3/21/2002] Thus, if the presiding member or a majority considers a statement made under any form of coercion to have some “probative value,” it “shall” be admitted. Professor Neil Katyal of Georgetown University later says this is a break with standard proceedings in civil courts and courts-martial and calls it “clearly at odds with American military justice.” [Los Angeles Times, 8/18/2004] Under the rules, the “Accused” is assigned a military officer to conduct his defense, but may select another officer. He may also retain a civilian attorney; however, only one who is vetted by the military. Unlike a military attorney, the civilian lawyer can be excluded from the trial if the presiding member of the commission decides to hold closed proceedings. This prompts Amnesty International to observe that the commissions “will restrict the right of defendants to choose their own counsel and to an effective defense.” [Amnesty International, 10/27/2004] Under the rules of the military commissions the military is allowed to monitor private conversations between defense lawyers and their clients. This violates, as Human Rights Watch remarks, “the fundamental notion of attorney-client confidentiality.” [Human Rights Watch, 1/9/2004] In a discussion of the new rules, Deputy Secretary of Defense Paul Wolfowitz, in an appearance on the PBS News Hours with Jim Lehrer, explains that the detainees being held in Guantanamo are “dangerous people, whether or not they go before a military commission.” He adds, “We're dealing with a special breed of person here ....” [US Department of State, 3/21/2002]
People and organizations involved: Paul Wolfowitz
          

July 3, 2003

       The government announces that President Bush has named six Guantanamo detainees to be tried before a military commission. They are David Hicks from Australia, Moazzam Begg holding dual British and Pakistan nationality, Feroz Abbasi from the UK, Salim Ahmed Hamdan and Ali Hamza Ahmad Sulayman al-Bahlul, both from Yemen, and Ibrahim Ahmed Mahmoud al-Qosi from Sudan. [Department of Defense, 7/3/2003]
People and organizations involved: David Hicks, Feroz Abbasi, Salim Ahmed Hamdan, Ibrahim Ahmed Mahmoud al-Qosi, Moazzam Begg, George W. Bush, Ali Hamza Ahmad Sulayman al-Bahlul
          

July 7, 2004

       In response to the Supreme Court's ruling a week before (see June 28, 2004), Deputy Secretary of Defense Paul Wolfowitz signs an Order Establishing a Combatant Status Review Tribunal thereby establishing “Combatant Status Review Tribunals” to review each Guantanamo detainee and decide whether the prisoner is an unlawful enemy combatant. [Sources: Order Establishing Combatant Status Review Panels, 7/7/2004] The tribunals will use the following definition of an unlawful combatant: “Any individual who was part of supporting Taliban or al-Qaeda forces or was associated with forces that are engaged in hostilities against the United States or its coalition partners. This includes any person who has committed belligerent acts or directly supported hostilities in aid of enemy armed forces.” [New York Times, 8/24/2004]
People and organizations involved: Taliban, Paul Wolfowitz
          

July 30, 2004

       At Guantanamo, the first of the Combatant Status Review Tribunals (see July 7, 2004) convenes to determine whether the designations of 585 detainees at Guantanamo as unlawful enemy combatants are just. The hearings were ordered by the Supreme Court which ruled in June that detainees have the right to challenge their detention (see June 28, 2004). The hearings, open to only a small number of reporters, are conducted by three military officers. Each hearing will generally take about two hours. The defendants are not required to cooperate or even be present during the hearings. [New York Times, 8/24/2004] The burden of proof during the tribunal hearings lies with the detainees, although they are hardly in a position to make their case. They are not permitted attorneys to represent their case. Instead, each detainee is assigned a “personal representative,” who is a military officer, not a lawyer or advocate. The detainees can be denied information about how, where, and from whom incriminating information about them originates. [New York Times, 8/24/2004] Although the detainees may call witnesses or present evidence, the Los Angeles Times reports that they are rarely permitted to put forward any evidence or offer the testimony of witnesses in their defense. According to the newspaper, their requests are frequently turned down as “irrelevant.” Other evidence is often ruled inadmissible. [Los Angeles Times, 11/7/2004] Government prosecutors, however, are permitted to use a wider range of types of evidence than that which is permissible in a US criminal court. According to the order establishing the tribunals: “The Tribunal is not bound by the rules of evidence such as would apply in a court of law. Instead the Tribunal shall be free to consider any information it deems relevant and helpful to a resolution of the issue before it. At the discretion of the Tribunal, for example, it may consider hearsay evidence, taking into account the reliability of such evidence in the circumstances.” [Sources: Order Establishing Combatant Status Review Panels, 7/7/2004]
          

July 30, 2004-January 22, 2005

       During the six-month period the Combatant Status Review Tribunals are held at Guantanamo, the military severely restricts reporters' access to the hearings. Reporters are not permitted free access to the hearing rooms and are denied basic information about the detainees, such as their names and the charges being made against them. “As a result, the hearings have received almost no news coverage,” the Los Angeles Times will report in November. [Los Angeles Times, 11/7/2004]
          

August 2004

       The number of Guantanamo detainees charged with a crime and singled out for trial by military commission reaches 15. However, for the time being, hearings are scheduled for only four of them—David Hicks, Ali Hamza Ahmad Sulayman al-Bahlul, Ibrahim Ahmed Mahmoud al-Qosi, and Salim Ahmed Hamdan. All are charged with conspiracy, except for Australian David Hicks, who is also charged with attempted murder and aiding the enemy. [New York Times, 8/25/2004]
People and organizations involved: Ali Hamza Ahmad Sulayman al-Bahlul, David Hicks, Ibrahim Ahmed Mahmoud al-Qosi, Salim Ahmed Hamdan
          

August 18, 2004

       Tim Edgar of the American Civil Liberties Union says the status review tribunals (see July 30, 2004) (see August 2004) (see August 24, 2004) being held at Guantanamo amount to “second-class tribunals, the likes of which we haven't seen since World War II.” [Los Angeles Times, 8/18/2004]
People and organizations involved: Tim Edgar
          

August 23, 2004

       By this date, the Combatant Status Review Tribunal has ruled on the status of 14 Guantanamo detainees. In all 14 cases, the tribunal determines that the Pentagon's original decision to designate them as unlawful enemy combatants had been justified. Twelve of 31 prisoners reviewed so far have refused to take part in the process. [New York Times, 8/24/2004]
          

August 24, 2004

       A hearing is held for Guantanamo detainee Salim Ahmed Hamdan, who is being accused of being a member of al-Qaeda, conspiring to commit acts of terrorism, and destruction of property. The five-member military commission—the first to conduct a trial since World War II—is presided over by Army Col. Peter Brownback, who, according to the Pentagon, has 22 years of experience as a judge advocate and almost 10 as a military judge. [BBC, 6/29/2004; Los Angeles Times, 8/25/2004] Hamdan's military lawyer, Navy Lt. Cmdr. Charles Swift, begins his argument with an attack on Brownback's qualification to practice law. He calls attention to the fact that Bownback, a retired military judge, is not a current member of the bar in his home state of Virginia. He also alleges that the judge's office had inappropriate out-of-court discussions with the Office of Military Commissions, and that Brownback had said in a meeting with defense lawyers that a speedy trial was “not an issue here.” Though Brownback denies making the comment, Swift produces a recording of the conversation. But Bownback isn't the only one put on trial by Swift. He also targets three members of the commission and an alternate member. Swift argues that three have “extensive backgrounds” in dealing with operations in Afghanistan, the treatment of detainees, and military intelligence, and therefore are not in a position to pass an unbiased judgment on the defendant. The alternate member, Lt. Col. Curt S. Cooper, Swift demonstrates, knows little about international law. When asked, “Do you know what the Geneva Convention is, sir?” Cooper replies: “Not specifically. No, Sir. And that's being honest.” But, he adds, he knows that the Convention consists of three articles. But as Swift points out, that is wrong. “Actually, there are six, Sir,” Swift says, correcting him. Air Force Col. Christopher C. Bogden is the only commission member not challenged by Swift. [New York Times, 8/25/2004; Los Angeles Times, 8/25/2004] In addition to his attacks on the commission members, Swift challenges the merits of the charges against his client. For example he argues that Hamden was denied a speedy trial and that the laws he has been accused of violating were written after the alleged offense.
People and organizations involved: Curt S. Cooper, Christopher C. Bogden, Salim Ahmed Hamdan, Peter Brownback, Charles Swift
          

September 2, 2004

       A Los Angeles Times editorial says the recent hearings before a military commission in Guantanamo (see July 30, 2004) (see August 2004) (see August 24, 2004) are “slapdash preliminary hearings,” which “violated basic tenets of fairness.” They resembled “something between a Mel Brooks farce and the kangaroo courts of former Ugandan dictator Idi Amin,” the paper says. [Los Angeles Times (Editorial), 9/2/2004]
          

September 2, 2004

       Human Rights Watch says trials being held in Guantanamo before military commissions are “fundamentally flawed” and “fall far short of international due process standards.” [Human Rights Watch, 1/9/2004]
People and organizations involved: Human Rights Watch
          

September 8, 2004

       By this date, Combatant Status Review Tribunals have been held for 55 Guantanamo detainees. The review process has been completed for 30 of them, only one of whom—an unidentified man held prisoner at Guantanamo since May 2002—has been determined not to be an enemy combatant. He will be released without compensation. [Boston Globe, 9/9/2004] The Pentagon will refuse to provide any details about the detainee or his case—who he is or why he was determined not to be an enemy combatant. [Los Angeles Times, 11/7/2004]
          

October 7, 2004

       British Guantanamo prisoner Feroz Abbasi argues during his Combatant Status Review Tribunal hearing that he should be granted POW status in accordance with the Geneva Conventions. One of the three Tribunal members, an air force colonel, replies: “Mr. Abbasi, your conduct is unacceptable .... I don't care about international law. I don't want to hear the words ‘international law’ again.” [The Sunday Times, 11/21/2004]
People and organizations involved: Feroz Abbasi
          

October 23, 2004

       Following criticism over their impartiality (see August 24, 2004), retired Army Maj. Gen. John D. Altenburg Jr. removes three members from the six-member military commission that is trying enemy combatants at the Guantanamo base in Cuba. [The Independent, 10/23/2004] Altenburg heads the Appointing Authority for the Office of Military Commissions, which selects members of the military commissions. [Los Angeles Times, 8/25/2004] Army Col. Peter Brownback retains his job. Brownback's eligibility to preside over the Guantanamo hearings had earlier been challenged by Navy Lt. Cmdr. Charles Swift, the attorney for detainee Salim Ahmed Hamdan. Critics suggest his close personal relationship with Altenburg is a factor. Brownback was a close colleague of Altenburg at Fort Bragg. He attended the wedding of Altenburg's son, and his wife worked in Altenburg's office. Swift criticizes the decision not to remove Brownback and says the standards “make no sense.” [The Independent, 10/23/2004]
People and organizations involved: Salim Ahmed Hamdan, Peter Brownback, Charles Swift, John D. Altenburg Jr.
          

Early November 2004

       Eugene R. Fidell, president of the Washington-based National Institute of Military Justice, says the US is skirting its obligations under the Geneva Conventions. “These are not a meaningful substitute for the competent tribunals required under the Geneva Conventions,” he says. The tribunals, he argues, should have been held in Afghanistan and Pakistan just after the detainees were captured, when evidence and witnesses were still easily obtainable. Commenting on the 104 cases so far reviewed by the tribunal—only one of which resulted in a detainee being released—Fidell sneers: “That's a great battling average, isn't it? They're pitching a nearly perfect game.” [Los Angeles Times, 11/7/2004]
People and organizations involved: Eugene R. Fidell
          

Early November 2004

       Thomas Wilner, the attorney for 12 detainees from Kuwait, says the hearing process underway at Guantanamo “is basically a sham.” says Thomas Wilner, attorney for 12 detainees from Kuwait. [Los Angeles Times, 11/7/2004]
People and organizations involved: Thomas Wilner
          

Early November 2004

       Pentagon spokeswoman Navy Cpt. Beci Brenton says defends the Combatant Status Review Tribunals being held at Guantanamo are fair. “We think this is a professional process, she says. It's very rigorous. It's fair. We take extra steps to make sure the detainees understand the process, and they are given a good opportunity to speak for themselves.” [Los Angeles Times, 11/7/2004]
People and organizations involved: Beci Brenton
          

November 7, 2004

       The Combatant Status Review Tribunals has ruled on 104 cases. In only one, has the military commission ruled in favor of a detainee (see September 8, 2004), who left Guantanamo in September. [Los Angeles Times, 11/7/2004]
          

November 8, 2004

       US District Judge James Robertson rules that the Combatant Status Review Tribunal being held at the Guantanamo base in Cuba to determine the status of detainee Salim Ahmed Hamdan is unlawful and cannot continue. At the time of the decision, Hamdan is before the Guantanamo military commission. [USA Today, 11/9/2004; Washington Post, 11/9/2004] Robertson, in his 45-page opinion, says the government should have conducted special hearings to determine whether detainees qualified for prisoner-of-war protections under the Geneva Conventions at the time of capture. [USA Today, 11/9/2004] He says that the Bush administration violated the Geneva Conventions when it designated prisoners as enemy combatants, denied them POW protections, and sent them to Guantanamo. [Boston Globe, 11/9/2004] The Combatant Status Review Tribunals that are currently being held in response to a recent Supreme Court decision (see June 28, 2004) are inadequate, Robertson says, because their purpose is to determine whether detainees are enemy combatants, not POWs, as required by the Third Geneva Convention. [USA Today, 11/9/2004] Robertson also rejects the administration's claim that the courts must defer to the president in a time of war. “The president is not a ‘tribunal,’ ” the judge says. [USA Today, 11/9/2004] Clinton appointee Robertson thus squarely opposes both the president's military order of November 13, 2001 (see November 13, 2001) establishing the possibility of trial by military tribunal, and his executive order of February 7, 2002 (see February 7, 2002) declaring that the Geneva Conventions do not to apply to Taliban and al-Qaeda prisoners. “The government has asserted a position starkly different from the positions and behavior of the United States in previous conflicts,” Robertson writes, “one that can only weaken the United States' own ability to demand application of the Geneva Conventions to Americans captured during armed conflicts abroad.” [USA Today, 11/9/2004; Washington Post, 11/9/2004; Boston Globe, 11/9/2004] Robertson orders that until the government conducts a hearing for Hamdan before a competent tribunal in accordance with the Third Geneva Conventions, he can only be tried in courts-martial, according to the same long-established military rules that apply to trials for US soldiers. [Boston Globe, 11/9/2004; Washington Post, 11/9/2004] Robertson's ruling is the first by a federal judge to assert that the commissions are illegal. [Washington Post, 11/9/2004] Anthony D. Romero, director of the American Civil Liberties Union; Eugene R. Fidell, president of the National Institute of Military Justice; and Michael Ratner, president of the Center for Constitutional Rights, all applaud Robertson's ruling. [Boston Globe, 11/9/2004] The Bush administration refutes the court's ruling and announces its intention to submit a request to a higher court for an emergency stay and reversal of the decision. “We vigorously disagree. ... The judge has put terrorism on the same legal footing as legitimate methods of waging war,” Justice Department spokesman Mark Corallo says. “The Constitution entrusts to the president the responsibility to safeguard the nation's security. The Department of Justice will continue to defend the president's ability and authority under the Constitution to fulfill that duty.” [Boston Globe, 11/9/2004; Washington Post, 11/9/2004] He also says that the commission rules were “carefully crafted to protect America from terrorists while affording those charged with violations of the laws of war with fair process.” [Boston Globe, 11/9/2004] Though the ruling technically only applies to Hamdan, Hamdan's civilian attorney, Neal Katyal, says it could affect other detainees. “The judge's order is designed only to deal with Mr. Hamdan's case,” Katyal says. “But the spirit of it ... extends more broadly to potentially everything that is going on here at Guantanamo.” [USA Today, 11/9/2004]
People and organizations involved: James Robertson, Supreme Court, Jamil al-Banna, Neal Katyal, Anthony D. Romero, Mark Corallo, George W. Bush, American Civil Liberties Union, Salim Ahmed Hamdan  Additional Info 
          

December 20, 2004

       Navy Secretary Gordon England says that a second detainee reviewed by the Combatant Status Review Tribunal in Guantanamo has been determined not to be an enemy combatant. England does not reveal the man's name, nationality, information on when or where he was captured, when he was transferred to Guantanamo, or why the tribunal decided to reverse his status. So far, the tribunal has reviewed the statuses of 507 prisoners and made decisions in 230 of the cases. Two hundred fifteen detainees have refused to cooperate. [Reuters, 12/20/2004]
People and organizations involved: Gordon England
          

January 22, 2005

       The Combatant Status Review Tribunals are completed for the last of the Guantanamo detainees. Of the 327 detainees whose status has been both reviewed and ruled upon, only three prisoners were determined not to be enemy combatants and released. The remaining 228 detainees are awaiting decisions on their status. The military commissions have not provided any reasons for any of the rulings. [The Guardian, 1/23/2005]
          


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