Guantanamo trial proceedings 145;invalid146;

Hamdan, captured in Afghanistan in late 2001, was sent to the US naval base at Guantanamo Bay in 2002, and contested his detention earlier this year. Robertson ruled that the Bush administration had not followed a lawful procedure in declaring Hamdan an 8216;8216;enemy combatant8217;8217; who was not entitled to protections and privileges under the Geneva Convention. The 8216;8216;combatant status review tribunals8217;8217; 8212; used by the Pentagon to decide whether to hold detainees 8212; are not a 8216;8216;competent8217;8217; court to make such a determination, Robertson said.

The military commission process, which prosecutes detainees using secret evidence and unnamed witnesses, 8216;8216;could not be countenanced in any American court8217;8217;, he ruled.

8216;8216;The government has asserted a position starkly different from the positions and behaviour of the US in previous conflicts, one that can only weaken the United States8217; own ability to demand application of the Geneva Conventions to Americans captured during armed conflicts abroad,8217;8217; wrote Robertson, who served as a lieutenant in the Navy between 1959 and 1964. He was appointed a judge in 1994 by former US President Bill Clinton.

To correct the system, Robertson said, the government must recognise the detainees as prisoners of war under the Geneva Convention until it has a legally valid way to declare they are not POWs. In order to comply with Robertson8217;s ruling, the government would have to grant Hamdan access to all commission sessions, witnesses and evidence against him.

The judge said one option would be to move the detainees8217; trials to standard court-martial proceedings, used for all crimes involving the military and those held under military control. 8216;8216;The practical outcome of this is that the government is not going to be able to maintain this system,8217;8217; said Eric Freedman, a Hofstra University law school professor who has challenged the military commissions in court on behalf of two detainees.

The Justice Department, which is handling the administration8217;s case, said it would appeal the ruling. Spokesman Mark Corallo said lawyers would apply for an emergency stay. The government said Robertson8217;s ruling runs counter to the established war powers of the President and that President George W. Bush had properly determined that the Geneva Convention did not apply to a terrorist organisation such as Al Qaeda. 8216;8216;The process struck down by the district court today was carefully crafted to protect US from terrorists while affording those charged with violations of the laws of war with fair process, and the department will make every effort to have this process restored through appeal,8217;8217; Corallo said. 8212;LAT-WP

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