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Appeals Court Tackles Detainee's Trial Rights

By Jeralyn, Section Terror Detainees
Posted on Thu Apr 07, 2005 at 11:16:55 AM EST
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Does an accused have a right to be present at their entire trial? They do in American courts. But maybe not at military tribunal trials at Guantanamo. The case of Salim Ahmed Hamdan, allegedly a driver for Osama bin Laden, was heard today by the D.C. Court of Appeals.

The three-judge panel reacted strongly when a lawyer for Salim Ahmed Hamdan told them "it makes no sense to say that we adhere to international law and the first thing we do at the beginning of a trial is violate a canon of international law." Legal systems of other countries don't allow a defendant to be present for all parts of a trial, Appeals Judge A. Raymond Randolph replied. Judge John Roberts added that some countries don't allow cross-examination of witnesses.

"This is the law in Rwanda," but should not be in the United States, replied the detainee's lawyer, Charles Swift.

.....Now Hamdan would be barred from part of his trial, while the government presents classified evidence that only his attorneys would be allowed to see. The government says national security necessitates the step, leading to the judge's ruling that the Bush administration's military commissions are unlawful.

"The right to be present at all stages in criminal proceedings is fundamental, guaranteed by military law, common law, constitutional law and international law," Hamdan's attorneys say in an appeals court filing.

Hamdan has been charged with being a member of a conspiracy to "attack American civilians, acting as an illegal combatant, in violation of the traditional laws of war." His lawyers say:

“A driver, whether he is Hitler’s driver, Martha Stewart’s driver or any other driver, doesn’t necessarily have any knowledge of what’s going on. Driving Osama bin Laden around didn’t kill anybody. ... He has the great misfortune of having chosen a terrible employer, but that doesn’t make him a terrible person.”

Hamden's tribunal proceeding was underway last year when the Judge stopped it to determine whether Geneva Convention protections applied.

[Judge] Robertson ordered the government to convene a tribunal of military officers to determine whether Hamdan is a prisoner of war, an illegal enemy combatant, or perhaps an innocent man with no role in al-Qaida. For the time being, Robertson said, Hamdan does get Geneva Convention protections.

The Government appealed the ruling, and now the Appeals court will decide. Eventually, the case may reach the Supreme Court.

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    Appeals Court Tackles Detainee's Trial Rights | 20 comments (20 topical)
    Re: Appeals Court Tackles Detainee's Trial Rights (none / 0) (#1)
    by Talkleft Visitor on Thu Apr 07, 2005 at 11:39:28 AM EST
    Judge John Roberts added that some countries don't allow cross-examination of witnesses.
    Gee. What a culture of life. The new republican platform: THEY do it - why can't WE??

    Re: Appeals Court Tackles Detainee's Trial Rights (none / 0) (#2)
    by roger on Thu Apr 07, 2005 at 11:51:08 AM EST
    Maybe Rwanda does have a better justice system, I really dont know enough about it to say. As a trial attorney in the US though, I find it hard to imagine that we still have "the best system in the world" as we used to brag.

    Re: Appeals Court Tackles Detainee's Trial Rights (none / 0) (#3)
    by Talkleft Visitor on Thu Apr 07, 2005 at 12:54:06 PM EST
    Oh, please tell me where the Republicans are coming down hard on the radical, extremist and pro-active pannel that had the timerity to look to foreign practice. They must be taken out and (well you know what can happen according to some Republican legislators.)

    Re: Appeals Court Tackles Detainee's Trial Rights (none / 0) (#4)
    by Talkleft Visitor on Thu Apr 07, 2005 at 01:05:30 PM EST
    Roger - what kind of half-baked stupid-ass statement is:
    Maybe Rwanda does have a better justice system, I really dont know enough about it to say
    And you went to LAW SCHOOL so are presumably moderately intelligent???? Why don't you get in the long line of Americans immigrating to Rhwanda for better legal protections??? Better yet, as the most blatant apologist I've ever met, I think a few Marcus Garvey apologists are trying to revive the Black Star Line. Go check out how the other half lives and feel free to not ever vote here. Ever, ever.

    Re: Appeals Court Tackles Detainee's Trial Rights (none / 0) (#5)
    by Talkleft Visitor on Thu Apr 07, 2005 at 01:17:15 PM EST
    JMohr, I challenge you to explain how you got "the timerity to look to foreign practice" out of the judicial panels dismissal of "canons of international law" on the grounds that "some countries don't even allow cross examination". The only good news is that hard-core apologist defenses are becoming so ridiculous, so farcical, so out of the realm of logic that you all are bound to become so enmeshed in your excuses you either involuntarily self-immolate or become ridiculous parodies of yourselves. Thanks! It saves us dems a lot of time developing a message. All we have to do is avoid stepping in the poo scattered all over Washington and wait for the sane 25% of conservatives to realize they've been made fools of. It's starting to happen already. We've got a great progressive Dem. gubenatorial candidate in Mass. with a fantastic message - of Faith in government and fellow citizens as well as faith in God. Of faith in our constitution and legislative branches rather than bible-based criticism of them. Can't you feel the pendulum starting it's swing back to the middle???? : )

    Re: Appeals Court Tackles Detainee's Trial Rights (none / 0) (#6)
    by Talkleft Visitor on Thu Apr 07, 2005 at 01:40:05 PM EST
    I wouldn't go so far as to say "faith" in government, but rather a sober realization that government can be used for good or ill. P.S. - We could use some of those progressive candidates down here in Kentucky.

    Re: Appeals Court Tackles Detainee's Trial Rights (none / 0) (#7)
    by roger on Thu Apr 07, 2005 at 01:47:27 PM EST
    mfox, great, I'll defer to your superior learning. Please tell us all you know about comparative law. Or do you speak out of knee jerk ignorance?

    Re: Appeals Court Tackles Detainee's Trial Rights (none / 0) (#8)
    by roger on Thu Apr 07, 2005 at 01:56:26 PM EST
    BTW- Consoled another attorney yesterday after the judge told her that while her client did not meet the legal standard of guilt, his (the judge's) conscience was satisfied, so he gave the defendant five years in prison. Now, tell me why we have it so good here!

    Re: Appeals Court Tackles Detainee's Trial Rights (none / 0) (#10)
    by Talkleft Visitor on Thu Apr 07, 2005 at 04:56:00 PM EST
    If Swifts cites it as a canon of international law, I guess I would want to know the source of this canon. If he was speaking rhetorically, he left the door wide open for the response he got from the Judge. It sounds like he was speaking rhetorically when he opted to cite Rwanda systems instead of the source of this canon of international law. Now, in best practice model, the argument makes sense. Being American it makes sense that the accused would be able to be present, confront the accusers, cross examine, etc.

    Re: Appeals Court Tackles Detainee's Trial Rights (none / 0) (#11)
    by Talkleft Visitor on Thu Apr 07, 2005 at 05:49:43 PM EST
    mfox: I really have to stop all attempts at being sarcastic. Today's political discourse has devolved to the point that even something that should be seen as absurd will be taken seriously. As one of "us" Democrats, I was hoping that others would see the hypocrisy of the Republicans decrying court references to international standards without objecting to a reference to the same standards to justify a conservative view of due process rights. Yes, as it noted, it was to be so illogical as to be farcical.

    Re: Appeals Court Tackles Detainee's Trial Rights (none / 0) (#12)
    by learned hound on Thu Apr 07, 2005 at 06:00:44 PM EST
    Rwanda? This panel would be happier with discussions of the law of Rhodesia, that's something they can relate to.

    Re: Appeals Court Tackles Detainee's Trial Rights (none / 0) (#13)
    by roger on Thu Apr 07, 2005 at 06:14:32 PM EST
    Actually, this is the first time that I have heard the US system compaered to Rwanda. Usually, we are talking about the death penalty, where we are usually grouped with Iran and china.

    Re: Appeals Court Tackles Detainee's Trial Rights (none / 0) (#14)
    by Talkleft Visitor on Fri Apr 08, 2005 at 06:49:08 AM EST
    International law may not be as much an issue as our treaty obligations which are theoretically binding on the US. I say theoretically because US treaty compliance is just terrible. This country has always taken a dim view of foreigner and our treaty obligations even when the "foreigners" were the original inhabitants of this continent. Be that as it may, the US signed the Geneva Conventions and others which deal with basic human rights. The detainees could presumably have some standing and expectation of certain rights under the terms of these treaties. I wish them luck with their treaty rights.

    Re: Appeals Court Tackles Detainee's Trial Rights (none / 0) (#15)
    by Talkleft Visitor on Fri Apr 08, 2005 at 09:57:01 AM EST
    Apologies, JMohr. I should have known better. I saw a commercial last night where a rather conservative looking guy started talking about how crabgrass has "invaded" his yard and "taken over three quarters of it". I wasn't paying close attention at first and didn't even realize it was a commercial - he sounded so much like a right-winger I looked up waiting for him to declare "war on crabgrass." Sad, sad but true.

    Re: Appeals Court Tackles Detainee's Trial Rights (none / 0) (#16)
    by Talkleft Visitor on Fri Apr 08, 2005 at 10:03:14 AM EST
    Apologies to you too, Roger. After reading the thread a second time I see I have taken you out of context in my misinterpretation of your point. My feeling is that as a country founded during enlightenment views of justice we started out with extremely good intentions ("it is better to let 10 guilty men go free than one innocent man be imprisoned") and excellent controls on government abuses in that we acknowledge that the balance of power tips in favor of the prosecution just by the defendant being the defendant. I am not a lawyer and no student of comparative law (do they have classes in conceptual law??). However the above two principles are where I draw the line of who gets prosecuted, for what and how.

    Re: Appeals Court Tackles Detainee's Trial Rights (none / 0) (#17)
    by roger on Fri Apr 08, 2005 at 11:13:01 AM EST
    mfox, Apology accepted. I was suprised, because you and I usually agree on most points, and yes, I also agree with you that the principles that founded this republic are the best that anyone has yet come up with. My fear is that many in this country are abandoning the principles that made us great.

    Re: Appeals Court Tackles Detainee's Trial Rights (none / 0) (#18)
    by Talkleft Visitor on Fri Apr 08, 2005 at 01:32:13 PM EST
    None of you seem to have read either side’s briefs (which are available publically.) This case has had many amicus briefs as well. Yet, you based your analysis on newspaper reports that were written by non-lawyers. This is not only unacceptable conduct for a lawyer, but unacceptable conduct for any American. I don’t really see why you people think you need such a complicated system of justice when you are incapable of reading more than a one page website summarizes what some non-lawyer thinks was said in an oral argument, which represents just the tip of the legal iceberg in these issues. Also, it is bad form to talk about at treaty without referring to the specific provisions. I disowned a sister for doing this.

    Re: Appeals Court Tackles Detainee's Trial Rights (none / 0) (#9)
    by Talkleft Visitor on Fri Apr 08, 2005 at 01:32:50 PM EST
    Before speaking about the Rwandan justice system, I would suggest that you stop making racist generalization about it and actually research it. It seems that a lot of the commenters are unaware as to what the underlying issues in these cases being argued are, so it is difficult see what they are saying, anyway.

    Re: Appeals Court Tackles Detainee's Trial Rights (none / 0) (#19)
    by roger on Fri Apr 08, 2005 at 02:24:34 PM EST
    132, the briefs are not a transcript of the oral arguments, they are quite different. also, I read briefs and motions all day. I have little inclination to continue all night. Other interests too, ya know

    Re: Appeals Court Tackles Detainee's Trial Rights (none / 0) (#20)
    by Talkleft Visitor on Sat Apr 09, 2005 at 06:16:24 AM EST
    Of course the briefs not the transcripts of the oral arguments, but you seem to be ignorant of both of them. If you are going to talk about this case (in which the issues of law are quite complex), then you darn well better know that both arguments are, and not some summary written by a non-lawyer who is repeating from a press-release, anyway. This is why I disowned my sister. (Interestingly, she also complained that girls were paid less than men. However, I pointed out that the reason that in our family the men are paid more is that they were brought up to always do the reading, and somehow their clients now appreciate the fact that they know what they are talking about. Therefore, at least in my family, there was a good reason that girls were paid less than men.) Reluctantly, I have come to the conclusion that Americans deserve a low level of political debate. We simply cannot handle complex issues. Instead, we prefer platitudes. Indeed, you admit that you don’t have the patience to read actual materials you talk about. Your excuse is that you have read other materials and you are too tired. I guess this is acceptable, but since most Americans will never read any of the actual legal arguments, they deserve nothing more than a few platitudes that declare that some emotion is the correct one to be feeling. There are some interesting issues in this case, and most of the Gitmo litigation. Unfortunately, most Americans will never know on what basis it is resolved. Instead, they will enjoy saying “Scalia is a jerk” or “RBG is an activist.”

    Appeals Court Tackles Detainee's Trial Rights | 20 comments (20 topical)