US military judge rejects Hamdan POW status, allows military commission trial

[JURIST] US military judge Navy Capt. Keith Allred ruled [PDF text] Wednesday that military commission proceedings against Guantanamo Bay detainee Salim Ahmed Hamdan [DOD materials; JURIST news archive] can proceed, denying a defense motion to dismiss for lack of jurisdiction. Allred had earlier agreed to hold a hearing to determine whether Hamdan should be considered a prisoner of war [JURIST report] under the Third Geneva Convention, but in the decision made available by the Defense Department Thursday, Allred concluded:

The Government has carried its burden of showing, by a preponderance of the evidence, that the accused is an alien unlawful enemy combatant, subject to the jurisdiction of a military commission. The Commission has separately conducted a status determination under Article 5 of the Third Geneva Convention, and determined by a preponderance of the evidence that he is not a lawful combatant or entitled to Prisoner of War Status. There being no Constitutional impediment to the Commission's exercise of jurisdiction over him, the Defense Motion to Dismiss for Lack of Jurisdiction is DENIED. The accused may be tried by military commission.
In a statement [DOC text] from Hamdan's defense lawyers made available by SCOTUSblog, Hamdan's defense expressed disappointment at the ruling, but said:
Much of the Commission's decision issued yesterday is, in our view, quite positive. Judge Allred ruled that as matter of international law, certain detainees at Guantanamo are entitled to Article 5 hearings under the Geneva Convention, and he found that Taliban and certain other participants captured during the armed conflict in Afghanistan, including al Qaeda fighters supporting the Taliban forces, may be deemed lawful combatants and therefore proper POW's who would not be subject to prosecution for war crimes under the Military Commissions Act. That is a ruling that may well have a substantial impact at Guantanamo, and other detainees in addition to Mr. Hamdan.
Hamdan is accused of serving as a driver for Osama bin Laden before his capture and incarceration at Guantanamo Bay. Last year he successfully challenged the military commission system when the US Supreme Court ruled [JURIST report] that the commissions as initially constituted violated US and international law. Congress subsequently passed the Military Commissions Act of 2006, and Hamdan again challenged the system, arguing that it still violates his rights, but the Supreme Court refused to hear his appeal [JURIST report] in October. He had hoped the Supreme Court would consider his case along with those of other detainees challenging their detention at Guantanamo Bay [JURIST report]. AP has more. SCOTUSblog has additional coverage.


 

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