The Department of Defense today announced it intends to reconvene military commissions in the wake of a unanimous decision by a federal court of appeals that the military commissions process is a proper venue in which to try enemy combatants held at Guantanamo Bay, Cuba, for violations of the laws of war.
Action on all military commissions has been suspended since December 2004 in response to a November 2004 federal district court order staying further proceedings in the case of Salim Ahmed Hamdan.
On July 15, 2005, the U.S. Court of Appeals for the District of Columbia Circuit reversed the lower court decision in the Hamdan case and upheld President Bush's February 2002 determination that the Geneva Convention does not apply to al Qaeda terrorists.
The court also acknowledged the Presidents authority to convene military commissions, ruling that military commissions had been authorized by Congress in two different statutes, as well as in its 2001 authorization for use of military force by the President to prevent acts of international terrorism against the United States.
"The court has rendered its decision that military commissions are a proper and legally appropriate venue to try enemy combatants, and the Department of Defense will resume commission proceedings immediately, as consistent with legal rules," said acting Deputy Secretary Gordon England.
Defense Secretary Donald H. Rumsfeld had previously delegated to the deputy secretary of defense the responsibility for overseeing the military commissions process.
The presiding officer in the cases of Yemeni detainee Hamdan and Australian detainee David Hicks will soon notify defense counsel that commissions will resume for both men as soon as any necessary court orders are issued.
Hamdan has been charged with conspiracy to commit attacks on civilians and civilian objects, murder and destruction of property by an unprivileged belligerent, and terrorism.
Hicks has been charged with conspiracy to commit attacks on civilians and civilian objects, attempted murder by an unprivileged belligerent, and aiding the enemy.
The lower court's stay in the Hamdan case remains in place until the court of appeals issues its mandate. The Department of Defense and the Department of Justice are currently consulting to determine whether to seek immediate issuance of the mandate, which is typically issued about 50 days after an opinion unless a party seeks a rehearing.
Immediate issuance of the mandate would allow commission proceedings in the Hamdan case to resume immediately.
The Office of Military Commissions intends to take the following additional actions this week:
Move forward with commission proceedings against Yemeni detainee Ali Hamza Ahmad Sulayman al Bahlul and Sudanese detainee Ibrahim Ahmed Mahmoud al Qosi. Each of these detainees is charged with conspiracy to commit attacks on civilians and civilian objects, murder and destruction of property by an unprivileged belligerent, and terrorism. The Appointing Authority, John Altenburg, is expected to appoint new commission members for these cases this week.
Continue to prepare charges against eight other individuals. The President has already determined that there is reason to believe these individuals have committed offenses subject to military commission jurisdiction. A Presidential "reason to believe" determination is necessary before commission authorities can refer charges against the accused.
Continue preparing "reason to believe" recommendations to the President regarding additional individuals held at Guantanamo Bay.
Although no judicial stays exist in these cases, Hicks and al Qosi have habeas corpus cases pending in the U.S. District Court for the District of Columbia. The Department of Justice intends to notify that court soon that the appointing authority intends to reconvene commission proceedings against Hicks and al Qosi.
The Department of Defense will also announce the appointment of a new chief defense counsel and a new chief prosecutor for the Office of Military Commissions this week. The incumbent in each position is retiring from military service.
The Department of Defense will also advise media organizations this week to prepare for commission proceedings in Guantanamo Bay. Commissions may be observed by members of the press and certain non-governmental organizations, consistent with security restrictions outlined in commission rules and to the maximum extent practicable given lodging and other logistics limitations.