Email re. The Latest on GTMO Legal Processes

This document is an email criticizing Judge Robertson's decision in Hamdan v. Rumsfeld. The email states that "This is an opportunity for the Administration to fix the process and still save the process." It includes three pages of the opinion Hamdan v. Rumsfeld opinion.


Subject: ,The Latest on GTMO Legal processes
rage: 1. Ul 1
Attached is the decision from Judge ,Robertson - it is pretty bad. DOJ has characterized it as a "disaster"
It contains inter-alia
-th~ Presid~nt does not have inherent authority to use military commissions
- AI Oaeda an9 Taliban may be 'entitled to POW status.
, Geneva Conventions are self executin~
, CSRT doesn't substitute for Art. V
Sinc~ IpOW status i~ in dou9t. he cannot be tri,ed by milita'ry commission.
The dust has yet to !?ettle -- but it looks like we will be doing some portion of the CSRT and the Commissi.ons
are a relative easy, fix - with a 3 month or so delay -- depending on how long it takes for the CSRTs to become
Art. V ~ribunals. Bottom line for the FBI -- this can only mean more DOJ involvement.- and henpe more reliance
on the FBI This is an opportunity for t,he,Administration to fix the prpcess and still15ave 'the progeS$. We still ...
have the current work to do - the only thing stayed at the' moment is the Commissions. I ,have it on good authority
. that Mr. Haynes (000 general counsel) has had his best people behind closed. doors for some 5 hours trying to,
find a fix -- with pending Habeas actions, the fix will have to come sooner than laler. .
Assitant General Counsel
Counterterrorism Law Unit 1
US Naval Base, Guantanamo Bay, Cuba I I ' '
, t
DOJOIG 006353
v. Civil Action No. 04-1519' (JR)
Salim Ahmed H.:;:tmdan petitions for a writ· of habeas
corpus, challenging the lawfulness of the ~ecretary of Defense's
plan to try him for allege4 war crimes befor~ a military
,commission convened under special orders .issued by tp.e President
of the United States, rather' thah'be~o~e a court-martial convened
u,ndex the Uniform Code of Military Justice. ·The government mo~es
to dismiss. Because Hamdan has not been determined by a
competent tribunal to be an,offender triable under the law of
war, 10 U.S.C. § 821, and because in any event the procedures
established for the Military Commission by the President's order
are "contrary to or inconsistent",with those applic~ble to
courts-ma~tial, 10 U.S.C. § .836, Hamdan'S petition will be
granted ,in part. The government's motiQn will be denied. The
reasons for these rulings are set for'th, below.
FBI FO#10 FBI-0000414 DOJOIG 006354

witness in child abuse case permissible under rule of necessity),
which noted that the "central concern of the Confrontation' Clause
, '
i$ to ensure the reliability of the evidenc~ against a criminal
, defendant by subjecting it to 'rigorous testing in the co.ntext of
an adversary proceeding before the trier of fact" 'and 'that the
"elements of confrontation" -:-- "physical presence, oath,
cross-examination, and observation of demeanor' by the t~ier of
fact," serve a~ong other things to enhance the accu~acy of factfinding
by "reducing the risk that a witness will wrongfully
implicate an innocent person." Id., at 846 (internal 'citations
omitted) .
Fo~lowing Craig in a military case inv~lvinq child
abuse, the Court of Appeals for the Armed Forces fou~d that a
" military judge had misapplied the Supr~me Court's holding when he
excluq,ed the defendant from the coul;'troom during a' general
court-:-mart;,ial :,
There [in Craig], the witn~ss was outside'the
courtroom and the defendant was present.'
," Here,- the witness' was in' the courtroom and
appellant 'was excluded .. While appellant
could observe JI S testimony, he 'could not
observe'tqe reac~i6ns of the court'members or
th~ ~ilitary judge, and t~ey could not '
observe his demeanor. ~e could not
',communicate with his counsel except through
the bailiff, who was not a. member, of the'
defense team. We hold that this procedure
violated the Sixth Amendment, Article 39, and
RCM 804.' While Craig and [United States v'.
Williams, 3] M.J. 289 (C.M.A. 1993)] permit
restricting an accused's face-to-face
confrontation of a witness, .they do not
FBI FO#10 FBJ:-0000453
DOJOIG 006355
authorize,expelling an accused from the
United States. v. Daulton, 45 M.J. 212,> 219 (C.A.A:F. 1996); see
also United States v. Longstreath, 45 M.J. 366 (C.A.~.F.
1996) (defendant separated from witness by' television but present
in courtroom) .17
A tribunal set up to try, p.ossibly convict, and punish
a person accused of that i,s configured in advance 'to, permit
the introduction of evidence and ~he-testimony of witnes~es ou~
of the presence,of the ac~used is indeed substantively different
from a regularly convened 'court-martial. If such a-tribunal is
not a "regularly c'onstituted court affording al'l the judicial
guarantees which are recognized as indis'pensable by c'ivilized
pe'oples," it is v:iolative· of Common Arti'c'le 3. ,That is a
question 'on whi;ch I ',Jjp-ve determined to abstain. In the 'meantime,
howeyer,' I cannot stre~ch t~e meaning, of the Military
C:ommission"s rule enough to find it consistent w,ith. the UCMJ' ,13'
r;ight to be present. 10 U:S.C. ~ ,839. A provision that permits
'the exclusion of the accused from his trial for reasons other
D ' The st~tute Congr~ss enacted after and in 'light of the
'Craig opinion, 18 U.S.C.' §, 3.':i09, carefully pr;otects the rights of
child victims and witnesses in abuse cases but preserves the
right of the accused 'to be present. Even if a child witness is
permitted to testify by videotaped deposition, the accused must
be tlpresenttl via two-way television, and the defendant must be
"provided with a means of private, contemporaneous communication
with the defendant's attorney during the deposition. 1I 18 U.S.C.
§ ,350 9 (b) (2) (B)' ( i v) . '
- 41 -
FBI FO#10 FBI-0000454
DOJOIG 006356