| http://www.dcd.uscourts.gov/04-1519.pdf
MEMORANDUM OPINION
Salim Ahmed Hamdan petitions for a writ of habeas
corpus, challenging the lawfulness of the Secretary of Defense’s
plan to try him for alleged war crimes before a military
commission convened under special orders issued by the President
of the United States, rather than before a court-martial convened
under the Uniform Code of Military Justice. The government moves
to dismiss. Because Hamdan has not been determined by a
competent tribunal to be an offender triable under the law of
war, 10 U.S.C. § 821, and because in any event the procedures
established for the Military Commission by the President’s order
are “contrary to or inconsistent” with those applicable to
courts-martial, 10 U.S.C. § 836, Hamdan’s petition will be
granted in part. The government’s motion will be denied. The
reasons for these rulings are set forth below.
[[[Snip]]]
ANALYSIS
1. Abstention is neither required nor appropriate.
[[[Snip]]]
2. No proper determination has been made that Hamdan is an
offender triable by military tribunal under the law of war.
[[[Snip]]]
3. In at least one critical respect, the procedures of the
Military Commission are fatally contrary to or inconsistent
with those of the Uniform Code of Military Justice.
[[[Snip]]]
4. Hamdan’s detention claim appears to be moot, and his speedy
trial and equal protection claims need not be ruled upon at
this time.
[[[Snip]]]
CONCLUSION
It is now clear, by virtue of the Supreme Court’s
decision in Hamdi, that the detentions of enemy combatants at
Guantanamo Bay are not unlawful per se. The granting (in part)
of Hamdan’s petition for habeas corpus accordingly brings only
limited relief. The order that accompanies this opinion
provides: (1) that, unless and until a competent tribunal
determines that Hamdan is not entitled to POW status, he may be
tried for the offenses with which he is charged only by courtmartial
under the Uniform Code of Military Justice; (2) that,
unless and until the Military Commission’s rule permitting
Hamdan’s exclusion from commission sessions and the withholding
of evidence from him is amended so that it is consistent with and
not contrary to UCMJ Article 39, Hamdan’s trial before the
Military Commission would be unlawful; and (3) that Hamdan must
be released from the pre-Commission detention wing of Camp Delta
and returned to the general population of detainees, unless some
reason other than the pending charges against him requires
different treatment. Hamdan’s remaining claims are in abeyance.
JAMES ROBERTSON
United States District Judge
ORDER
For the reasons set forth in the accompanying
memorandum opinion it is
ORDERED that the petition of Salim Ahmed Hamdan for
habeas corpus [1-1] is granted in part. It is
FURTHER ORDERED that the cross-motion to dismiss of
Donald H. Rumsfeld [1-84] is denied. It is
FURTHER ORDERED that, unless and until a competent
tribunal determines that petitioner is not entitled to the
protections afforded prisoners-of-war under Article 4 of the
Geneva Convention Relative to the Treatment of Prisoners of War
of August 12, 1949, he may not be tried by Military Commission
for the offenses with which he is charged. It is
FURTHER ORDERED that, unless and until the rules for
Military Commissions (Department of Defense Military Commission
Order No. 1) are amended so that they are consistent with and not
contrary to Uniform Code of Military Justice Article 39, 10
U.S.C. § 839, petitioner may not be tried by Military Commission
for the offenses with which he is charged. It is
FURTHER ORDERED that petitioner be released from the
pre-Commission detention wing of Camp Delta and returned to the
general population of Guantanamo detainees, unless some reason
other than the pending charges against him requires different
treatment. And it is
FURTHER ORDERED that petitioner’s remaining claims are
in abeyance, the Court having abstained from deciding them.
JAMES ROBERTSON
United States District Judge
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