The Supreme Court today heard the case Hamdan v. Rumsfeld.
Salim Ahmed Hamdan is a Yemeni who has admitted to being Osama bin Laden’s driver in Afghanistan and is alleged to be a member of al Qaeda and to have trained in terrorist camps in Afghanistan. He was captured there in 2001.
Hamdan is one of 490 detainees being held at a facility set up at U.S. Naval Station Guantanamo in 2002 to hold terrorists captured on the battlefield in Afghanistan and elsewhere.
Today the Supreme Court heard Hamdan’s challenge that President Bush did not have the power to create military commissions at Guantanamo.
Military commissions are trials for those suspected of committing war crimes.
The Court will also consider whether the detainees can go to court in the United States to enforce protections under the Geneva Conventions. The Bush Administration has argued that the conventions do not apply to these detainees. They are not prisoners of war because al Qaeda is not a signatory to the Geneva Conventions, and neither the Taliban nor al Qaeda meet any of the definitions of the term “prisoner of war” outlined in the conventions.
The Court must also decide whether a recent law, the Detainee Treatment Act, stripped it of its jurisdiction over Hamdan’s appeal.
Military commissions have traditionally been used to try violations of the law of war.
To date, the President has determined that 14 detainees currently at Guantanamo are eligible for trial by military commission. Of those 14, 10 have had charges approved against them and six cases have begun, including Hamdan’s. The other four of the 14 who are eligible for trial by military commission have not been charged.
Military commissions provide a full and fair trial and protection for classified and sensitive information. The rules of evidence take into account the unique battlefield environment that is very different from peacetime civilian law enforcement practices.
Each military commission panel consists of a presiding officer who must be a judge advocate and at least three other military officer members.
Safeguards for the accused include the presumption of innocence and proof of guilt beyond a reasonable doubt. The accused is provided a military defense counsel at no cost and may hire a civilian defense counsel, and may present evidence and call witnesses.
Military commissions are separate from the Combatant Status Review Tribunals and Administrative Review Boards.
Combatant Status Review Tribunal
The Combatant Status Review Tribunal deals with enemy combatant designation. It does not deal with threat assessment.
The Tribunal was a one-time venue for detainees to challenge their enemy combatant designation.
Dozens of individuals have been released as a result of their Tribunal hearing.
Administrative Review Boards
The Administrative Review Board annually assesses the remaining potential threat and intelligence value represented by each detainee. The boards are designed to reexamine detainees regularly in order to identify detainees who can be released.
The Administrative Review Board operates much like a parole board, assessing whether an individual who is lawfully and appropriately detained remains a threat. The process also provides a detainee the opportunity to make a case for why he might be released or transferred.
There are three possible outcomes to the Administrative Review Board process. The individual can be released, typically back to their home country; the individual can be transferred, again, typically back to their country when the home country is willing to accept responsibility for ensuring, consistent with its laws, that the detainee will not continue to pose a threat to the international community; or the individual can continue to be detained at Guantanamo.
A process like the Administrative Review Board is not required by the Geneva Conventions or by any international or domestic law. It helps mitigate concern about indefinite detention during the unconventional conflict in which we are now engaged.
U.S. Naval Station Guantanamo Bay, Cuba
Captured combatants are being detained to prevent them from continuing the fight against the United States and our allies, and to obtain intelligence necessary in the ongoing Global War on Terror.
The United States has no desire to hold detainees any longer than is absolutely necessary to protect our citizens and the security of the United States.
All detainees are treated humanely and in accordance with the Geneva Conventions. The President has been clear in stating that the U.S. does not condone torture. None of the evidence the prosecution intends to offer in the 10 cases currently referred to military commission was obtained through conduct that could reasonably be considered torture.
More than 1,000 members of the media, numerous members of the U.S. Congress, and representatives from the International Committee for the Red Cross have visited the facility.
Approximately a dozen of the more than 230 detainees who have been released or transferred since detainee operations started at Guantanamo are known to have returned to the battlefield.