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Issues Too "Novel and Complex" to Consider?

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July 17, 2008

There was general buzz earlier this week that Judge James Robertson might grant Salim Hamdan’s motion and stop his military commissions proceeding (let’s not call it a “trial” – that has the ring of justice about it) which is scheduled to begin on Monday in Guantánamo. Alas, alack. Today he ruled that the commission could proceed.

The decision came after two hours of oral argument in a packed courtroom earlier today and followed a ruling by a military judge earlier this week in which he also decided not to delay the trial.

“Hamdan is to face a military commission designed by Congress based on guidelines handed down by the Supreme Court,” Robertson said. Hamdan, often referred to as Osama bin Laden’s driver, is being tried for conspiracy and “material support of terrorism.”

Robertson did not fully endorse the military commission process. He said that Hamdan’s lawyers had raised “novel and complex” issues but put off addressing them until later. He went on to say that if Hamdan was convicted, he could appeal the constitutional issues (secret evidence, not being able to question witnesses against him, testimony obtained through torture . . . to name just a few) in civilian court and military courts. Of course, how much sense it makes to conduct a trial which everyone knows is unconstitutional only to overturn it later is extremely debatable. Despite headlines like “Judge Won’t Stall Trial” this will only prolong the legal process, one that has been nothing but laborious, halting, and slipshod from the beginning.

While the decision only affects Hamdan’s proceeding, there are hundreds of habeas petitions pending before other federal judges and many will look to Robertson’s decision in determining how to proceed.

Monday’s commission will be the first planned at Guantánamo. There are still over 250 prisoners being kept at the camp, many of them for more than five years, but commissions are only planned for an estimated 70 of the men there. That leaves almost 200 people who are being held, indefinitely, without charge, and without an end in sight.

A solution? Hamdan, and every other prisoner at Guantánamo, should be tried in an ordinary federal court or a traditional military one. That is the only way that justice, instead of political agenda’s, will be served.

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