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Government to Appeal Ruling That Halts Guantanamo Proceeding

By Kathleen T. Rhem
American Forces Press Service

WASHINGTON, Nov. 9, 2004 – The government is appealing a Nov. 8 federal judge's ruling that brought a halt to a military commission hearing in a war- crimes trial against an enemy combatant being held at Guantanamo Bay, Cuba.

Government officials remain convinced military commissions are the best way to try detainees who are not legal combatants of a sovereign government.

"At the end of the day, we believe that the military commissions process remains the best venue for trying violations of the laws of war," Air Force Maj. Michael Shavers, a Defense Department spokesman, said today.

Judge James Robertson of the U.S. District Court in Washington issued a lengthy ruling that found the government overstepped its bounds and violated the Geneva Conventions in trying Salim Ahmed Hamdan in a military commission. The judge's ruling said the government should try Hamdan in a military court-martial.

Preliminary hearings going on in Guantanamo this week in the case stopped after the commission's presiding officer, Army Col. Peter Brownback, was apprised of the judge's ruling.

Hamdan is accused of being a member of the al Qaeda terrorist network and is alleged to have been a driver for Osama bin Laden. Hearings in his case began in August, and he was scheduled to stand trial in a military commission in December.

Government officials "vigorously disagree with the court's decision," Justice Department spokesman Mark Corallo said in a statement Nov. 8. He said the government would seek an emergency stay of the ruling and immediately appeal.

"We believe the president properly determined that the Geneva Conventions have no legal applicability to members or affiliates of al Qaeda, a terrorist organization that is not a state and has not signed the Geneva Conventions," Corallo said. "We also believe that the president's power to convene military commissions to prosecute crimes against the laws of war is inherent in his authority as commander in chief of the armed forces."

Corallo said that by ruling the Guantanamo detainees should be subject to the Geneva Conventions, "the judge has put terrorism on the same legal footing as legitimate methods of waging war."

Defense officials agreed with this position. "DoD's position remains that to afford the full protections of the Geneva Conventions to al Qaeda or the Taliban undermines the purpose of the conventions to protect non-combatants from being caught up in a conflict and those who abide by the laws of war," Shavers said.

"The president determined that al Qaeda and the Taliban did not fight according to the laws of war. Therefore, to afford them the protections of lawful combatants undermines the reason for the Geneva Conventions," he said.

Officials are awaiting the results of an appeal before determining how to proceed with the military commissions.

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