Yemeni's lawsuit contends special tribunal violates Constitution

By Maureen O'Hagan
Seattle Times staff reporter

TOMAS VAN HOUTRYVE / AP An inmate of Camp X-Ray is escorted by two guards while other inmates are seen in their cells in Guantánamo Bay U.S. Navy Base, Cuba, in this March 15, 2002, file photo. Defendant Salim Ahmed Hamdan has been in solitary confinement since December.

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At the center of the case is Salim Ahmed Hamdan, a Yemeni who admits he was a driver for Osama bin Laden.

The military lawyer assigned to represent him, Navy Lt. Cmdr. Charles Swift, is using Hamdan's detention in Guantánamo Bay to question the power of his own commander in chief, the president of the United States.

The issues, wrote U.S. District Judge Robert Lasnik in a procedural ruling last week, have "monumental significance" and are reminiscent of the Japanese-internment cases decided six decades ago in the same courthouse.

Swift argues not only that Hamdan is an innocent civilian, but that the military tribunal President Bush's administration created to try him is unconstitutional. Also, he says, the tribunal rules violate military law and the Geneva Conventions.

In civilian court, that would be akin to a lawyer challenging the entire criminal-justice system, from the judge to the rules of evidence to the law books that line the walls.

The case, Hamdan v. Rumsfeld, is the first court challenge to the new tribunals, and it offers a glimpse into a modern world of justice that has been created to confront the terrorist threat.

Swift, a career military lawyer, is not the sort to take shots at his government. But, in his opinion, this new justice is no justice at all.

Picked up in Afghanistan

Hamdan was picked up in Afghanistan in November 2001 by paramilitary troops looking for Arabs to sell to the Americans as prisoners of war, according to the lawsuit. He had arrived in Afghanistan five years earlier and began working as a driver on a farm bin Laden owned, earning $200 a month to shuttle farmworkers and, later, the terrorist chief himself.
 
The 34-year-old Muslim was taken to Guantánamo Bay and held at Camp Delta among about 600 other prisoners labeled enemy combatants. Then last July, the Bush administration selected him and five other detainees for trial before a military tribunal.

These tribunals, announced by the president the same month Hamdan was arrested, exist in a sort of legal netherworld designed to be outside of military courts-martial, civilian courts where criminals are ordinarily tried, and the Geneva Conventions that cover the laws of war.

In each of these, there are long-established rules that govern the treatment of defendants. For example, under the Geneva Conventions, a suspect must not be held longer than 90 days without going to trial.

But using his broad wartime powers, here's how the president has set up the tribunals: The administration selects those to try and oversees their judges. Officials under the president's supervision come up with a list of eligible crimes as well as the rules under which the tribunals operate. There are no time limits, and no oversight by Congress or the judicial branch.

That has put Hamdan into a "legal black hole," according to his legal briefs — a through-the-looking-glass world in which "a factually innocent person can be found guilty," according to Swift.

The government said Hamdan will be charged with a crime, but he still hasn't been told what it is. He was transferred to solitary confinement in December in preparation for trial, but no trial date has been set.

He has been told the trial will be fair but that evidence may be withheld from him, and his lawyer must ask the government's permission before revealing any facts of the case. He can seek redress only up the chain of command — in other words, to the people who decided he should be charged in the first place.

"Have you read up on your Kafka?" asked Neal Katyal, a Georgetown University law professor who has written legal briefs for Hamdan and other detainees.

Last year, Hamdan was told he would remain in solitary until he agreed to plead guilty to an unspecified offense, according to the pleadings.

Swift, who filed suit on Hamdan's behalf in April, says he is permitted to file in Washington because he is a "next friend" of Hamdan's — a person appointed by a court to act in Hamdan's behalf — and he had established legal residency here after going to the University of Puget Sound School of Law, which is now part of Seattle University. The government disputes Swift's right to file here and will attack that point as the lawsuit progresses.

If the government is right and Hamdan cannot use this legal avenue, "the logical result" is that Hamdan "could serve a potential life sentence without ever being charged with a crime and without being afforded a chance to prove his innocence," legal filings state.

To Katyal, that "flouts what the American system of justice has been since the Civil War, if not before."

The Justice Department has declined to elaborate on the case. In legal filings, it simply stated that there is "reason to believe" Hamdan was a member of al-Qaida or otherwise involved in terrorism. Court papers also point out that all detainees have gone through a "multi-step screening process to determine if their detention is necessary." In news briefings, federal authorities have said the tribunals were designed for flexibility, which is needed to fight the war on terrorism.

Not protected by American law

Moreover, officials say that the detainees picked up in Afghanistan aren't governed by the Geneva Conventions because they are suspected members of al-Qaida, which belongs to no nation. Nor are they protected by American law because they are not citizens and they are not being held on American soil. The government is relying on a 1950 Supreme Court decision that denied constitutional protections to Germans captured during World War II and held overseas.

Unlike other detainee cases making their way through the courts, Hamdan's lawsuit does not argue that the president has no right to round up terrorism suspects to protect the country. Katyal and Swift say they support broad executive powers during times of war, but believe that once the imminent threat has passed and the question becomes one of guilt or innocence, as in Hamdan's case, the president must allow justice to take its course using long-established military and criminal procedures.

At this point, Swift's immediate goal is to get Hamdan out of solitary confinement and put back into the general population. Then he wants the evidence to be laid out so a neutral judge or jury can weigh his guilt.

Friday, Judge Lasnik denied the requests, ruling that the case would have to be delayed until the Supreme Court issues opinions on two other cases involving detainees. Those rulings are expected at the end of June, and Hamdan's hearing was pushed back to September.

Swift says criticizing the government is not something he takes lightly.

"We all took an oath to support and defend the Constitution of the United States," he said. "I have the absolute utmost respect for those of my colleagues who are doing that with their bodies. I was called on to do it with my mind."

He says a role model is John Adams, who made the unpopular decision to defend British troops accused in the Boston Massacre. All were spared the death penalty, and several were acquitted. Adams, who went on to become president, said later that it was "one of the best Pieces of Service I ever rendered my Country."

As for Swift, he says he's asking for only one thing.

"My hope," he said, "is that we get a day in court where these weighty issues can be decided."

Maureen O'Hagan: 206-464-2562 or mohagan@seattletimes.com