Global Policy Forum

Yemeni's Attorney Tries to Halt Tribunals


By John Mintz

Washington Post
April 8, 2004

In Federal Court, Lawyer Challenges U.S., International Legality of Proceedings

A military defense lawyer representing a Yemeni laborer who is headed for trial before a military tribunal at the Guantanamo Bay prison has filed a legal petition in federal court saying the tribunals must be halted because they are illegal under U.S. and international law.

Navy Lt. Cmdr. Charles Swift filed the suit in U.S. District Court in Seattle on behalf of his client, Salim Ahmed Hamdan, 34, who admits he worked as a chauffeur at Osama bin Laden's farm in Afghanistan. Swift argued in the filing that the tribunals unconstitutionally target only aliens and not U.S. citizens, and that President Bush lacks the congressional approval needed to allow the special trials to proceed.

Military law experts said the chances of this petition upending the tribunal process are unknowable because the tribunals are entirely new and legally untested -- to say nothing of the controversy surrounding them. "My jaw dropped when I heard about this suit," said Kevin Barry, a retired Coast Guard captain and expert on military law. "To my knowledge it's the first time a military defense counsel has filed suit in federal court on a case to which he's been assigned."

"This case might well get traction [in legally challenging the tribunals] because there's a great deal of substance to it," said Eugene Fidell, president of the National Institute of Military Justice. In January, Swift and four other military defense lawyers representing tribunal defendants made some roughly similar arguments in a friend-of-the-court brief in a case involving the Guantanamo Bay jail detentions. But that filing did not seek to end the tribunals, as Swift's suit filed Tuesday night does.

Bush's November 2001 order setting up the tribunals is "an unprecedented, unconstitutional and dangerously unchecked expansion of executive authority" in part because it established that only alien terrorists and not U.S. citizens could be tried before them, Swift said in the filing. Justice and Defense department spokesmen declined to comment on the petition. But in the past Pentagon officials, while disputing some legal arguments advanced by the defense lawyers, said their aggressiveness proves the tribunal defendants are being represented by zealous advocates.

Swift argues Hamdan was a simple Yemeni worker who visited Afghanistan in 1996 on his way to Tajikistan, where he planned to join a holy war. But he could not cross the border, and ended up getting a job on bin Laden's farm driving employees, and sometimes the al Qaeda leader himself. Then as U.S. troops took over Afghanistan in late 2001, he was captured by Afghan troops loyal to the United States, and eventually taken to Guantanamo Bay. "He has never taken up arms against the United States or knowingly participated in any way in any plan to kill or injure Americans," Swift wrote in the filing.

But U.S. officials have disputed that Hamdan is the naive laborer uninterested in al Qaeda that Swift has portrayed. But they have not publicly provided details of allegations against him. Swift filed the proceeding as a "next friend" to Hamdan, a legal tactic allowed when an aggrieved person cannot gain access to a courtroom. In 2002 a federal judge in Los Angeles denied an earlier court challenge brought by civil rights lawyers seeking hearings for all the prison's inmates, saying the lawyers could not claim to be "next friends" because they lacked any relationship to the detainees. But Swift has a signed statement from Hamdan requesting him to file this plea.

Swift filed the case in Washington state because that is his legal residence, and such filings traditionally are made in a courthouse near the "next friend's" home. Government lawyers are likely to argue in this case, as they have said in other cases, that federal courts lack jurisdiction in part because the Guantanamo Bay Naval Base is on land leased from Cuba, legal experts said.

The Swift filing -- in which he was assisted by private lawyers in the District and Seattle -- said that the U.S. military should abide by the rules of military justice in these cases, and that those rules require a detainee be tried within 90 days of being transferred into pretrial incarceration. Hamdan was placed in pre-tribunal solitary confinement in early December. Hamdan's solitary four-month detention in the special defendant's unit -- where he sees no sunlight, and can exercise only occasionally and at night -- has left him in a "grim" psychological state, Swift said.

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