Judicial Decision Rendering Guantanamo Trials Invalid

RAY SUAREZ:

The military tribunals the Bush administration established to deal with so-called enemy combatants suffered a serious setback yesterday. A federal district judge here in Washington ruled that the first military trial, now under way in Guantanamo, was invalid under U.S. and international law. The ruling affects all of the nearly 500 Afghan war detainees at the Guantanamo naval station.

We get more on the ruling and its ramifications now from John Hendren, Pentagon correspondent for the Los Angeles Times.

John, welcome.

JOHN HENDREN:

Thanks for having me.

RAY SUAREZ:

Was there a central flaw that U.S. District Judge James Robinson identified in the government's proposal on how to handle these prosecutions?

JOHN HENDREN:

There was. That was that he decided they had not properly determined that these were not prisoners of war, and as long as there is any doubt they are prisoners of war, they must be treated… they must have legal… they must have justice under the uniformed count of military justice, a court martial.

RAY SUAREZ:

If these men picked up in Afghanistan had been identified from the beginning as prisoners of war, how would the process have been different? What would have happened to them instead of what did?

JOHN HENDREN:

Under the Geneva Convention, they have to be tried in the same way the host countries' troops are tried themselves. So in other words, they have to go through a court martial process. You can't create a separate form of justice for them if they're prisoners of war.

RAY SUAREZ:

So what did the administration propose, and what is now under way that's been halted by this ruling?

JOHN HENDREN:

Well, the administration proposed a separate form of justice, a military commission, which has not been used since World War II. After World War II, the uniform code of military justice was created. I think it was 1951. And that set up a whole new form of justice that allowed you to try your own soldiers. It allowed you to try war crimes, enemy soldiers or even civilians in some cases.

RAY SUAREZ:

So was this the case, the one that made its way up to the U.S. District Court, brought on behalf of all 500 detainees, or was there one particular case that was wending its way up through the system?

JOHN HENDREN:

This case involved one detainee, the first detainee that came up before a military commission proceeding. His name is Salim Ahmed Hamdan. He's a 34-year-old Yemeni man who has been held in Guantanamo for about three years.

RAY SUAREZ:

So the Bush administration has responded to the judge's ruling. What do they have to say on their own behalf?

JOHN HENDREN:

They say the judge is making a key mistake, that he is equating people that they refer to as terrorists with regular uniformed, armed combat troops, and that the Geneva Convention should not recognize these people as such.

RAY SUAREZ:

Has the United States ever done a prosecution, is there a precedent that the Bush administration can point to and say, yes, we can do it this way because, here, we've done it this way before?

JOHN HENDREN:

They did. They point to that precedent in World War II and before World War II. There were a number of military commission proceedings. They were actually done under a different law in the sense that these proceedings entirely stem from a 2001 law that President Bush authorized; I shouldn't say a law. It was a finding by the president. But in World War II, there were Nazi saboteurs who were found here on U.S. shores. They were tried secretly in a military commission and executed after being convicted.

RAY SUAREZ:

Okay. So Judge Robertson releases his ruling. What happens now? You're dealing with lots of men who have been in prison for almost three years now and do they go back the square one and begin their legal sagas from the beginning? What happens?

JOHN HENDREN:

Well, interestingly, this only affects four people so far. Only four people at Guantanamo have been designated or rather have been charged under military commissions. What this means is that it's probably going to halt that process, as indeed it did yesterday, and the government has to decide whether they want to go ahead and fight, this and they've said they want to appeal it, or whether they want to change the rules in order to make it comport with regular military justice. That's going to be a debate that's going to start now, and I imagine it will go on simultaneously as the Justice Department takes this to appeals court.

RAY SUAREZ:

So does this mean some of these men could end up spending longer time in jail before they get to be heard by a panel, a commission, a jury of some sort?

JOHN HENDREN:

Exactly. Hamdan, having been held for about three years, he spent most of the last year in solitary confinement, but which is a pre-trial facility. The rest of these inmates, something like 500, they're not facing any kind of procedure like this, and the Defense Department is not naming more people for charges under the military commissions, presumably because they don't know how well the military commissions are going to go.

RAY SUAREZ:

Well, how does this relate to some of the other setbacks that the administration has run up against in trying to process or prosecute these men? This isn't the first time that a court has said, now wait a minute, in this process, is it?

JOHN HENDREN:

It's not. The Supreme Court in August contradicted the president's order by saying, in fact, these detainees do have access to federal courts. That ruling said they have to first exhaust the entire military commission process. But that is what is allowing these men to file in federal court here in Washington and ask the government why they're being held and demand reasons for that.

RAY SUAREZ:

So is there any sign now that the Bush legal experts, as they did the first time, are coming up with some new formulas, some new approach or are so far are they trying to stick with their original design for trying the people picked up in Afghanistan?

JOHN HENDREN:

On the surface, they're sticking with their original program, however, behind the scenes, there has been a constant discussion about changing the rules, minor rules have been changed all throughout the process. Recently they changed a rule that said the chief defense counsel could not hear privileged information from other defense counsel. Little rules like that have been changed all along.

RAY SUAREZ:

And so far just for the record, has anyone been tried under these rules from beginning to end, all the way to some sort of adjudication, some end to the story?

JOHN HENDREN:

No, Hamdan is the first one to face these commissions. Four people have actually gone up before them. One of them got halfway through what appeared to be a confession but was not actually arraigned before that proceeding was shut down. Hamdan has appeared I believe exactly twice. David Hicks has appeared twice. He's an Australian who is also being charged there.

So four people have gone up before it; the panels have been changed. Two panels are going to be re-seated for these two inmates. Two others have had the panel who acts as both judge and jury reduced from five members and an alternate to three after the defense counsel challenged individual members for apparent conflicts of interest.

RAY SUAREZ:

John Hendren of the Los Angeles Times, thanks a lot

JOHN HENDREN:

Thank you.