Legal challenges mount to Guantánamo tactics

Robertson ruled that the Defense Department was violating the terms of the Geneva Conventions because it had failed to conduct a tribunal to determine whether Hamdan was entitled to prisoner-of-war status. Absent such a tribunal, the US government - as a signatory of the Geneva Conventions for treatment of war captives - is obligated to treat Hamdan as if he were a prisoner of war, the judge says. And if he is a prisoner of war, Robertson adds, he must be afforded the same high level of due process protections as would be afforded a US soldier in a court-martial.

Since the military commission set up to try suspected Al Qaeda members does not include all the due process safeguards of a court-martial, the commission process is itself illegal, the judge ruled.

Government lawyers say the judge overstepped his authority by invalidating military decisions made by the president in his capacity as commander in chief. The Bush administration says suspected Al Qaeda members are not entitled to Geneva protections because they are terrorists who target civilians rather than soldiers who comply with the laws of war.

Lawyers for the government are asking a federal appeals court panel in Washington to overturn Robertson's decision, while lawyers for Hamdan are asking the US Supreme Court to take up the case and affirm the federal judge.

The Supreme Court is expected to decide next month whether to take up the case. If it doesn't, the appeals court panel is set to hear oral argument March 8.

Stephen Saltzburg is an expert in military justice and a law professor at George Washington University Law School. He has mixed feelings about Robertson's decision: While he is glad a federal judge has acted forcefully in a way that addresses world concerns about US indefinite detention policy at Guantánamo, he doubts the decision will be upheld on appeal.

"It appears to be a decision in which a federal court is asserting the authority to review detention decisions of basically anyone seized anywhere by the US under any circumstances," Professor Saltzburg says. He adds that it is highly unusual for a federal judge to declare certain trial procedures illegal prior to a trial taking place.

Saltzburg says the Hamdan case illustrates the need for Congress to get involved. "Congress has been AWOL here," he says. "We need to have the legislative branch - our representatives - addressing some of these issues and having a debate over what we should be doing here."

Neal Katyal is on Hamdan's defense team and is a professor at Georgetown University Law Center in Washington. He says Congress has imposed limits on executive power through laws it has passed governing the military justice system. "We are not talking about [the president] trying to protect the peace," Mr. Katyal says. "We are talking about someone who is bypassing Congress entirely and setting up a whole new apparatus of justice."

In its brief to the federal appeals court, the Bush administration denounces Robertson's ruling as "an extraordinary intrusion into the executive's power to conduct military operations to defend the United States." Robertson "gave greater weight to advice the president did not adopt than to the president's own determinations," it says.

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