In what can only be seen as a victory for the Bush administration, Judge James Robertson for the U.S. District Court in Washington denied Thursday a motion to delay the trial of the former driver of Osama bin Laden, Salim Hamdan.
Hamdan, a 37-year old Yemeni national, will be the first “enemy combatant” in the so-called war on terror waged by the United States to face the military tribunal established at the naval detention facility at Guantanamo Bay, Cuba.
Hamdan is accused of providing material support to bin Laden and al-Qaida. He is also alleged to have received weapons training in Afghanistan and transported "one or more SA-7 surface-to-air missiles" to be used against American forces.
Though he faces charges war crimes as defined by the U.S. Military Code of Uniform Justice for conspiracy to commit terrorist acts against the United States and for providing material support to a foreign terrorist organization, those crimes amount to aiding and abetting and are not considered war crimes under the Geneva Conventions.
Lawyers for Hamdan, including Georgetown law professor Neal Katyal, called on the courts to suspend the trial following the U.S. Supreme Court decision on Boumdiene v. Bush and al-Odah v. Bush which held the Guantanamo detainees have a right to petition their detention in civilian courts.
"We hold these petitioners do have the habeas corpus privilege," Justice Anthony Kennedy said, writing for the majority.
The Court, issuing its opinion in Boumediene, cautioned it was not, however, ruling the detainees were unjustly detained. That, Kennedy said, was a matter left to District Court judges.
So it was with Robertson, who said Thursday following a lengthy discourse, “The motion for injunction is denied.”
Katyal and his defense team had moved for the injunction saying the military tribunal was vague in its ever-evolving proceedings and it was an insurmountable challenge to provide his client an adequate defense in such a fluid system. Katyal further noted the entire tribunal system was off base because previous Supreme Court rulings had indicated there was “a concrete track record that this is going down the wrong path going off the rails.”
Robertson, however, backed away from the issue, telling Katyal it was not his position to define the rules and any challenges must be made after the trial, thus establishing Hamdan as the first real test case for the military tribunal system at Guantanamo.
The trial for Hamdan begins Monday.
