Military Commission Issues Key Ruling in Support of Detainee Rights and Geneva Conventions in Hamdan Case


Jen Nessel, [email protected]

New York, NY – Today, Center for Constitutional Rights (CCR) attorneys hailed the decision of Guantánamo detainee Salim Ahmed Hamdan’s military commission as a significant development in the battle for fair hearings and humane treatment for the men held by the U.S. at Guantánamo Bay.

The decision reaffirms that the Geneva Conventions apply to the men at Guantánamo. Article 5 of the Third Geneva Convention states that if there is any doubt whether someone held by a government is a prisoner of war, they should be presumed to be a prisoner of war, and therefore entitled to the protections the Conventions provide for prisoners of war, until their status is determined by a “competent tribunal.” The decision then goes on to state that the Combatant Status Review Tribunals (CSRT’s) are not competent tribunals for the purpose of determining whether a detainee qualifies for all prisoner of war protections. (In Hamdan’s case, the military commission judge will now make that determination.)

While CCR believes that the military commissions are a fundamentally flawed process and no substitute for fair trials in federal courts, CCR applauds the decision, issued yesterday and made public today. The opinion holds that the men at Guantánamo are entitled to the protections guaranteed to prisoners of war, at least until they have hearings before a competent tribunal. Those protections include prohibitions on torture and coercive interrogations.

“The government has relied on Combatant Status Review Tribunal decisions to claim both that it has the right to hold hundreds of men at Guantánamo, and that those men do not deserve a day in federal court. But today’s ruling clearly means that these Combat Status Review Tribunals—which often rely on evidence obtained by torture and unlawful coercion—do not satisfy the requirements of the Geneva Conventions,” said Shayana Kadidal, Senior Managing Attorney of the Guantánamo project at CCR.

“For almost six years the Bush administration has treated those imprisoned at Guantánamo as bereft of any rights under the Geneva Convention and as without the protections of POW’s,” said CCR President Michael Ratner. “This was never the law, and now the Bush administration may finally be forced to do what it should have done from the very beginning: comply with the Geneva Conventions.”

Salim Ahmed Hamdan has been at the center of key legal developments relating to the government’s ability to try detainees held at Guantánamo, most notably his successful 2006 Supreme Court case, Hamdan v. Rumsfeld, to which CCR contributed an amicus brief. In that case, the Supreme Court held in part that the Detainee Treatment Act of 2005 did not strip the federal courts of jurisdiction over pending habeas cases, which prompted Congress to pass the Military Commissions Act of 2006 (MCA). The MCA attempts to erode habeas corpus even further by proclaiming that all non-citizens designated or awaiting designation as enemy combatants, including legal immigrants detained in the U.S., do not have a legal basis to challenge any aspect of their detention, treatment or transfer, through habeas petitions or other legal vehicles. The MCA’s jurisdiction-stripping provision purports to apply to both pending and future cases. The constitutionality of the MCA’s stripping of habeas corpus is at the heart of the landmark case, Boumediene v. Bush, argued in the Supreme Court two weeks ago on behalf of men at Guantánamo represented by the Center for Constitutional Rights and co-counsel.


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Last modified 

December 18, 2007