(AFP) – Dec 18, 2007
WASHINGTON (AFP) — A US military judge has agreed to hold a hearing to determine if Osama bin Laden's former driver is a prisoner of war, in a setback for a White House push to prosecute Guantanamo detainees by military tribunal.
Military Judge Keith Allred ruled Monday in favor of Salim Ahmed Hamdan's petition for a determination of whether he is a prisoner of war, status the United States has denied its war-on-terror detainees, according to the American Civil Liberties Union, which follows Guantanamo proceedings.
Granting Hamdan POW status could lead to his being tried in a court-martial with protections guaranteed by the Geneva Conventions which govern the rights and treatment of captives in wartime, rather than the special tribunals set up for Guantanamo inmates.
"For almost six years the Bush administration has treated those imprisoned at Guantanamo as bereft of any rights under the Geneva Convention and as without the protections of POWs," said Center for Constitutional Rights president Michael Ratner.
"This was never the law, and now the Bush administration may finally be forced to do what it should have done from the very beginning: comply with the Geneva Conventions."
The CCR, which provides a number of attorneys for Guantanamo inmates, called the decision "a significant development in the battle for fair hearings and humane treatment" for the Guantanamo prisoners.
The ACLU also applauded the ruling but lamented the time it took to reach it.
"Under the Geneva Conventions, Mr Hamdan should have received this hearing six years ago, when he was first captured by US forces instead of now, as an add-on to an entirely new and procedurally flawed process," said Hina Shamsi, an ACLU staff attorney.
"It's always a positive step when the military commissions proceed in accordance with the United States' international law obligations. However, the judge's decision doesn't resolve the flaws inherent to the makeshift commissions system -- it's like sticking a band-aid on a broken leg."
Yemen-born Hamdan, who has been in US custody for six years, is a self-confessed former driver and bodyguard for the Al-Qaeda mastermind. He faces a possible life sentence on charges of conspiracy and material support for terrorism.
US attempts to try him by special military commissions in Guantanamo have been stalled by several fundamental legal hurdles.
On June 4 Allred moved to throw out the terrorism charges against him, saying the US government had failed to show that Hamdan met the legal definition of an "unlawful enemy combatant," necessary to commence his trial by special military tribunal.
In a hearing on appeal on December 6, the government again sought to have Hamdan classified as an unlawful enemy combatant. But his lawyers argued he should be granted prisoner of war status, and asked the judge to give Hamdan a status hearing under Article 5 of the Geneva Conventions.
Ahead of the ruling, a report on the Guantanamo website said that the tribunals' top prosecutor believed that an unfavorable ruling for the prosecution in the Hamdan case could "impede the military commissions' process."
"Our best hope and expectation is to find lawful jurisdiction in this case. This will also open the path to trials in other cases," chief prosecutor Colonel Lawrence Morris said.
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