Rulings Clear Military Trial of a Detainee

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the New York Times

Rulings Clear Military Trial of a Detainee

by
Scott Shane / William Glaberson

WASHINGTON - Court rulings on Thursday cleared the way for the first trial at the American detention camp in Guantánamo Bay, Cuba, opened in 2002 to hold suspects captured in the campaign against terrorism.0718 03 1

The trials have been delayed for years, in part by courts that found legal fault with the commissions created to try people designated by the government as "unlawful enemy combatants."

The rulings in Washington and in Guantánamo Bay rebuffed last-minute pleas by lawyers for Salim Hamdan, Osama bin Laden's former driver who is accused of being a member of Al Qaeda.

Judge James Robertson, of the Federal District Court in Washington, ruled that Mr. Hamdan's claims that the military commission he faces is unconstitutional can be appealed to a civilian court only after his military trial is over. In a parallel proceeding at Guantánamo, a military judge, Captain Keith J. Allred, rejected similar arguments.

After the rulings, the chief military prosecutor at Guantánamo, Col. Lawrence J. Morris of the Army, said prosecutors were "pleased by the court's ruling and we're ready to go to work."

Defense lawyers had hoped that the Supreme Court ruling last month in Boumediene v. Bush, upholding the right of Guantánamo prisoners to challenge their detention in court, might sway Judge Robertson to halt the military trial.

Court officials at Guantánamo said they were planning on Saturday to assemble a panel of military officers - a military style of jury - to hear the Hamdan trial, which could begin Monday.

Colonel Morris called Mr. Hamdan's case an important test of the military commission system and said trials for others among the 20 detainees already charged would now move quickly. He predicted that the unfamiliarity of military commissions would quickly wear off, comparing them to space shuttle flights that once riveted public attention but became so routine that they drew only modest interest.

It was Judge Robertson who ruled in 2004 that the original procedures set for military commissions by President Bush were inadequate, a finding upheld by the Supreme Court. In response, Congress in 2006 passed the Military Commissions Act, setting up new procedures for the trials.

On Thursday, Judge Robertson said the Congressional action was sufficient to let the trial begin. "Hamdan is to face a military commission designed by Congress under guidelines laid down by the Supreme Court," he said. He suggested that serious constitutional questions about the military commissions remain, but that they would have to be considered on appeal after his trial.

The ruling came after two hours of arguments from Mr. Hamdan's lawyers, Neal Katyal and Joseph M. McMillan, and a deputy assistant attorney general, John C. O'Quinn.

Mr. Hamdan's lawyers argued that to proceed with the military trial now would irreparably injure Mr. Hamdan, because the "rulebook" governing such novel trials was uncertain and because testimony based on hearsay and coercive interrogation methods would be allowed.

"At a minimum, Mr. Hamdan deserves his day in court - this court," Mr. Katyal said.

Mr. O'Quinn replied that the rulebook for the military trials was laid out in the law passed by Congress, and that any challenge from Mr. Hamdan should come only after his trial is over.

"It doesn't make sense for this court to jump in," Mr. O'Quinn said. He said the military commissions as refigured by Congress include "robust procedural protections."

Mr. Hamdan faces charges of conspiracy and providing material support for terrorism.

At Guantánamo, meanwhile, Judge Allred, the military judge, appeared to acknowledge in a ruling on Wednesday that the Supreme Court's Boumediene decision gave detainees a right to raise constitutional questions in the military courts. But in rulings on Wednesday and Thursday, he rejected the specific claims defense lawyers had raised: that the charges against Mr. Hamdan were unconstitutional because they were based on a law enacted after he was in custody and because the military commission law treats foreigners like him differently from American citizens.

Judge Allred noted in his written ruling on Thursday that the military commission trials afforded detainees many legal protections, including legal representation, a public trial and the right to be found guilty only by evidence beyond a reasonable doubt.

"In light of this substantial array of privileges and protections accorded to Mr. Hamdan," he wrote, "the commission does not find that the Equal Protection Clause needs to apply at Guantánamo Bay to prevent injustice."

The Guantánamo proceedings were unfolding as Congress continued to review Bush administration policies on interrogation. At a hearing on Thursday before the House Judiciary Committee, former Attorney General John Ashcroft rejected repeated suggestions from Democrats that the methods approved by the Justice Department constituted torture.

"I don't know of any acts of torture that have been committed," he said, adding that all the techniques fell within legally approved guidelines, including waterboarding, in which water is poured into the mouth and nose to produce a feeling of drowning.

Mr. Ashcroft acknowledged that he had approved a controversial memorandum from the Office of Legal Counsel at the Justice Department in August 2002 that set exceedingly broad limits for acceptable tactics. He said he was persuaded to approve the withdrawal of the memorandum two years later when senior department officials found the original legal rationale inadequate.

He pointed to the decision as an example of robust debate yielding an improved policy. "That's the way the system ought to work," Mr. Ashcroft said.

Committee members noted that Abu Zubaydah, the first major Qaeda figure captured by the Central Intelligence Agency, was subjected to harsh interrogation methods weeks before the Aug. 1, 2002, legal opinion was issued.

Mr. Ashcroft said he had no recollection of any earlier memorandum or of approving the methods himself, leaving uncertain what legal approval was given for waterboarding and other such methods before that date.

A recent account by ABC News reported that in a high-level meeting in 2002, Mr. Ashcroft raised questions about harsh interrogations, saying, "History will not judge this kindly."

Mr. Ashcroft declined to confirm or deny whether he had said such a thing, noting that such discussions would have been classified. "This town leaks like a sieve," he said. "I think the easiest job in the world would be to be a spy against America."

Scott Shane reported from Washington, and William Glaberson from Guantánamo Bay, Cuba. Eric Lichtblau contributed reporting from Washington.

Copyright 2008 The New York Times Company

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