'The President is Not a Tribunal'

Yesterday, in a major blow to the administration, a federal judge
ruled that "President Bush had both overstepped his constitutional
bounds and improperly brushed aside the Geneva Conventions" when he
established military tribunals in Guantanamo Bay, Cuba, to try
detainees as war criminals. The ruling, which put a halt to the
tribunal of Salim Ahmed Hamdan, was just the latest in a string of
setbacks to the administration's legal approach to terrorism. In June,
the Supreme Court ruled that – despite the administration's arguments
to the contrary – prisoners were entitled to challenge their status as
"enemy combatants" in federal court. The administration has yet to
comply with that ruling and plans to fight the ruling handed down
yesterday. The Justice Department vowed to immediately appeal the
ruling and plans to seek an emergency order to prevent it from being
enforced.

BUSH'S POLICIES PUT U.S. SOLDIERS AT RISK: Judge James Robertson's
opinion yesterday touched on a basic, but frequently overlooked,
reason the Geneva Conventions were ratified by the United States – to
protect American soldiers. Judge Robertson wrote that by asserting
that the Guantanamo detainees were outside the reach of the Geneva
Conventions, the administration weakened "the United States' own
ability to demand application of the Geneva applications to Americans
captured during armed conflicts abroad."

BUSH'S MILITARY TRIBUNALS FUNDAMENTALLY UNFAIR: Robertson ruled that
the commissions set up by the administration did not give defendants a
fair shot at defending themselves. The biggest problem is that the
prosecution could use secret evidence and unnamed witnesses to make
their case. Robertson found that no American court could operate
without "the right to confront one's accuser and the evidence." Other
problems critics of the tribunals have noted: "the translation
provided detainees has been amateurish; defense counsel has
continually operated with fewer resources than the prosecution [and]
the three-person panel that decides the case contains only one
lawyer." For recommendations on how to reform the military tribunals,
check out this report from American Progress.

THE PRESIDENT IS NOT A TRIBUNAL: The Supreme Court ruled in June that
the president couldn't just declare detainees enemy combatants outside
the protection of the Geneva Conventions – detainees had a right to
have their status determined by a competent tribunal. In response, the
administration created combatant status review tribunals (CSRT) to
determine the status of detainees held at Guantanamo. The CSRTs have
been criticized "because they deny the prisoners access to lawyers and
use as evidence Bush's determination that all detainees at Guantanamo
are enemy combatants." Judge Robertson ruled that the CSRTs did not
meet the requirements of the Geneva Conventions. Robertson rejected
the administration claim that "the CSRT determination that Hamdan was
a member of or affiliated with al Qaeda is also determinative of
Hamdan's prisoner-of-war status, since the President has already
determined that detained al Qaeda members are not prisoners-of-war
under the Geneva Conventions." Robertson explained: "The president is
not a tribunal." Robertson ruled that "Hamdan must be treated as a
prisoner of war unless and until a competent tribunal determines
otherwise."