Court weighs legality of Guantanamo tribunals

WASHINGTON - Are the 540 al-Qaida and other suspects held at the naval base at Guantanamo Bay, Cuba., entitled to prisoner of war status under the 1949 Geneva Convention?

Or are they unconventional enemies in a new kind of war, not wearing uniforms, not serving a nation-state, and therefore not protected by the Geneva Convention?

A three-judge panel of the Court of Appeals in Washington wrestled with those questions Thursday during 90 minutes of oral arguments in the case of Salim Ahmed Hamdan, an alleged chauffeur and bodyguard for Osama bin Laden.

With the national security stakes so high in Hamdan's case, it seems inevitably headed to the Supreme Court for final resolution.

Hamdan, a Yemeni who was captured in Afghanistan in 2001, has acknowledged working for bin Laden but says he was unaware of bin Laden’s terrorist activities.

A terrorist or only a driver?
After Thursday’s hearing ended, a reporter asked Navy Lt. Cmdr. Charles Swift, who represented Hamdan at Guantanamo, how the Yemeni could admit to being bin Laden’s driver, yet claim to have not taken part in any al-Qaida terrorism.

Swift replied, “A driver, whether he is Hitler’s driver, Martha Stewart’s driver or any other driver, doesn’t necessarily have any knowledge of what’s going on. Driving Osama bin Laden around didn’t kill anybody. ... He has the great misfortune of having chosen a terrible employer, but that doesn’t make him a terrible person.”

The United States has charged Hamdan with being part of a conspiracy to attack American civilians, acting as an illegal combatant, in violation of the traditional laws of war.

He was being tried by a military commission at Guantanamo last November when federal district Judge James Robertson intervened and halted the trial.

Robertson ordered the government to convene a tribunal of military officers to determine whether Hamdan is a prisoner of war, an illegal enemy combatant or perhaps an innocent man with no role in al-Qaida.

For the time being, Robertson said, Hamdan does get Geneva Convention protections.

Does Geneva Convention apply?
Urging the appeals court to overturn Robertson’s ruling, Assistant Attorney General Peter Keisler told the appeals court that al-Qaida is not a signatory to the Geneva Convention.

By attacking unarmed civilians, not wearing uniforms and not carrying their weapons in plain sight “they openly defy the principles of Geneva,” he said.

Keisler urged the appeals court to consider “the surpassing importance of protecting procedures and methods” of gathering military intelligence about al-Qaida. “We’ve never had a conflict in which intelligence was so important,” he declared.

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