Score one for the rule of law (shame the President still leads on points ...)

It seems a US Federal Judge has had the same reaction as me (and many other lawyers around the world) to the situation at Guantanamo. On my last post on the issue (26 October) I pointed out that the US had no right under the Geneva Conventions to treat people as “non-privileged combatants” before a tribunal under Article 5 of the Third Geneva Convention had determined that they were not entitled to prisoner of war status.

Seems Judge Robertson takes the same view:

The conventions oblige the United States to treat Mr. Hamdan as a prisoner of war, the judge said, unless he goes before a special tribunal described in Article 5 of the Third Geneva Convention that determines he is not. A P.O.W. is entitled to a court-martial if there are accusations of war crimes but may not be tried before a military commission.

The United States military did not conduct Article 5 tribunals at the end of the Afghanistan war, saying they were unnecessary. Government lawyers argued that the president had already used his authority to deem members of Al Qaeda unlawful combatants who would be deprived of P.O.W. status.

But Judge Robertson, who was nominated to be on the court by President Bill Clinton, said that that was not enough. "The president is not a panel," he wrote. "The law of war includes the Third Geneva Convention, which requires trial by court-martial as long as Hamdan's P.O.W. status is in doubt."

The judge also makes the often-recited (and entirely obvious) point:

… that in asserting that the Guantánamo prisoners are unlawful combatants and outside the reach of the Geneva Conventions, "the government has asserted a position starkly different from the positions and behaviour of the United States in previous conflicts, one that can only weaken the United States' own ability to demand application of the Geneva applications to Americans captured during armed conflicts abroad."

Unsurprisingly the administration has said it will seek an emergency stay of the ruling and a speedy appeal. A spokesman has said:

"By conferring protected legal status under the Geneva Conventions on members of Al Qaeda, the judge has put terrorism on the same legal footing as legitimate methods of waging war."

Which could not be more inflammatory or unfair. What the judge has said is: there is a presumption you are a POW until it is determined by military law (not presidential decree) that you are an unlawful combatant (or “terrorist”).

This is really only a relatively small procedural requirement – but it has halted the unlawfully constituted Guantanamo “release hearings” and represents a small blow for the rule of law.

I fear that appellate courts, though, will find some jurisdictional ground to throw it out without ruling on the substantial issue of procedural justice.