StarBulletin.com

Attorneys slam Bush for 9/11 actions


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POSTED: Wednesday, October 29, 2008

In its single-minded pursuit of possible terrorists, the Bush administration has rounded up and imprisoned hundreds of people at Guantanamo Bay for years. So far, just one of them has been tried.

Attorney Neal Katyal, who volunteered to represent that prisoner - Osama bin Laden's driver - spoke at a forum Monday sponsored by the Hawaii State Bar Association at the Pacific Club. He was joined by Honolulu attorney Edmund Burke, who also represents a Guantanamo detainee at no charge.

“;The president has taken very aggressive steps in the war on terror,”; said Katyal, a Georgetown University law professor. “;The result has been not very much in moving the ball further in terms of protecting us against terrorism. Seven years after 9/11, we've had a whopping one trial at Guantanamo. That person, my client, was sentenced to four months and 22 days.”;

His client, Salim Hamdan of Yemen, was convicted of supporting terrorism but acquitted of taking part in the al-Qaida conspiracy to attack the United States. He was sentenced in August and is due to be released by the end of the year, far short of the 30 years sought by military prosecutors.

The Pentagon has indicated it may keep him locked up - something Katyal said he will vigorously oppose.

Wherever he winds up, Hamdan's name will live on in American law. Katyal and co-counsel Lt. Cmdr. Charles Swift, a Navy attorney, took his case all the way to the Supreme Court, challenging the secret military tribunals set up by the Bush administration to try detainees at Guantanamo.

The high court's June 2006 ruling in Hamdan v. Rumsfeld was described as “;simply the most important decision on presidential power and the rule of law ever”; by former U.S. Solicitor General Walter Dellinger III, a Duke law professor.

In an unusual rebuke of a president during wartime, the court struck down the tribunals as unconstitutional and in violation of military and international law. The story behind the case is featured in a new book, “;The Challenge,”; by Jonathan Mahler, released in August.

Katyal became involved after President Bush issued a military order establishing the tribunals with no authorization from Congress, asserting unilateral executive power.

“;The president said he was going to do this all on his own,”; Katyal said. “;He said, 'I'm going to be able to try these people, pick the judges, write the rules for trial, define all the offenses. I'm going to pick the punishment and, by the way, the federal courts have no business reviewing what I'm doing.'

“;I thought that was a problem,”; said Katyal, 38, a former national security adviser in the Justice Department.

After losing at the Supreme Court, the Bush administration turned to Congress, which swiftly passed a law in September 2006 setting up a military trial system that stripped the Guantanamo detainees of the bedrock American right to habeas corpus. That's the right of the accused to ensure there are legal grounds for detention or, as Katyal put it, to “;come into federal court and say 'Hey, you got the wrong guy.'”;

In June of this year, that part of the law was also struck down by the Supreme Court.

“;Both court cases are important because they reaffirm the notion of the rule of law in America and the wisdom of our founders' system of checks and balances,”; Katyal said.

The roughly 250 people held at Guantanamo are now entitled to some legal protection. The Pentagon says it plans to charge 80 of them with war crimes before military tribunals. It's not clear what's going to happen to the rest of them.

Most of the prisoners were seized in 2001 and 2002 in Afghanistan, and none are from Iraq, said Burke, the Honolulu attorney who represents a Libyan detainee. Some were as young as 13, he said.

“;My client was just a person in the wrong place at the wrong time,”; Burke said. “;I think he's very typical of many others. The main goal now is to at least give the mass of these individuals a real day in court where it can be determined whether or not they should be further tried or sent home.”;