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Profile: Peter Brownback
Positions that Peter Brownback has held:
- Military commission Judge at Guantanamo
Peter Brownback was a participant or observer in the following events:
A hearing is held for Guantanamo detainee Salim Ahmed Hamdan, who is being accused of being a member of al-Qaeda, conspiring to commit acts of terrorism, and destruction of property. The five-member military commission—the first to conduct a trial since World War II—is presided over by Army Col. Peter Brownback, who, according to the Pentagon, has 22 years of experience as a judge advocate and almost 10 as a military judge. [BBC, 6/29/2004; Los Angeles Times, 8/25/2004] Hamdan’s military lawyer, Navy Lt. Cmdr. Charles Swift, begins his argument with an attack on Brownback’s qualification to practice law. He calls attention to the fact that Bownback, a retired military judge, is not a current member of the bar in his home state of Virginia. He also alleges that the judge’s office had inappropriate out-of-court discussions with the Office of Military Commissions, and that Brownback had said in a meeting with defense lawyers that a speedy trial was “not an issue here.” Though Brownback denies making the comment, Swift produces a recording of the conversation. But Bownback isn’t the only one put on trial by Swift. He also targets three members of the commission and an alternate member. Swift argues that three have “extensive backgrounds” in dealing with operations in Afghanistan, the treatment of detainees, and military intelligence, and therefore are not in a position to pass an unbiased judgment on the defendant. The alternate member, Lt. Col. Curt S. Cooper, Swift demonstrates, knows little about international law. When asked, “Do you know what the Geneva Convention is, sir?” Cooper replies: “Not specifically. No, Sir. And that’s being honest.” But, he adds, he knows that the Convention consists of three articles. But as Swift points out, that is wrong. “Actually, there are six, Sir,” Swift says, correcting him. Air Force Col. Christopher C. Bogden is the only commission member not challenged by Swift. [Los Angeles Times, 8/25/2004; New York Times, 8/25/2004] In addition to his attacks on the commission members, Swift challenges the merits of the charges against his client. For example he argues that Hamden was denied a speedy trial and that the laws he has been accused of violating were written after the alleged offense.
Following criticism over their impartiality (see August 24, 2004), retired Army Maj. Gen. John D. Altenburg Jr. removes three members from the six-member military commission that is trying enemy combatants at the Guantanamo base in Cuba. [Independent, 10/23/2004] Altenburg heads the Appointing Authority for the Office of Military Commissions, which selects members of the military commissions. [Los Angeles Times, 8/25/2004] Army Col. Peter Brownback retains his job. Brownback’s eligibility to preside over the Guantanamo hearings had earlier been challenged by Navy Lt. Cmdr. Charles Swift, the attorney for detainee Salim Ahmed Hamdan. Critics suggest his close personal relationship with Altenburg is a factor. Brownback was a close colleague of Altenburg at Fort Bragg. He attended the wedding of Altenburg’s son, and his wife worked in Altenburg’s office. Swift criticizes the decision not to remove Brownback and says the standards “make no sense.”
Salim Ahmed Hamdan. [Source: Public domain]US District Judge James Robertson rules that the Combatant Status Review Tribunal being held at the Guantanamo base in Cuba to determine the status of detainee Salim Ahmed Hamdan is unlawful and cannot continue. At the time of the decision, Hamdan is before the Guantanamo military commission. [Washington Post, 11/9/2004; USA Today, 11/9/2004] The commission system, as set up by White House lawyers David Addington and Timothy Flanigan three years before (see Late October 2001), gives accused terrorists such as Hamdan virtually no rights; in author and reporter Charlie Savage’s words, “the [Bush] administration had crafted rules that would make it easy for prosecutors to win cases.” [Savage, 2007, pp. 195-196]
Violation of Geneva Conventions - Robertson, in his 45-page opinion, says the government should have conducted special hearings to determine whether detainees qualified for prisoner-of-war protections under the Geneva Conventions at the time of capture. [USA Today, 11/9/2004] He says that the Bush administration violated the Geneva Conventions when it designated prisoners as enemy combatants, denied them POW protections, and sent them to Guantanamo. [Boston Globe, 11/9/2004] The Combatant Status Review Tribunals that are currently being held in response to a recent Supreme Court decision (see June 28, 2004) are inadequate, Robertson says, because their purpose is to determine whether detainees are enemy combatants, not POWs, as required by the Third Geneva Convention. [USA Today, 11/9/2004]
Rejects Claims of Presidential Power - Robertson also rejects the administration’s claim that the courts must defer to the president in a time of war. “The president is not a ‘tribunal,’” the judge says. [USA Today, 11/9/2004] Robertson, a Clinton appointee, thus squarely opposes both the president’s military order of November 13, 2001 (see November 13, 2001) establishing the possibility of trial by military tribunal, and his executive order of February 7, 2002 (see February 7, 2002) declaring that the Geneva Conventions do not to apply to Taliban and al-Qaeda prisoners. “The government has asserted a position starkly different from the positions and behavior of the United States in previous conflicts,” Robertson writes, “one that can only weaken the United States’ own ability to demand application of the Geneva Conventions to Americans captured during armed conflicts abroad.” [USA Today, 11/9/2004; Washington Post, 11/9/2004; Boston Globe, 11/9/2004]
Orders Military Courts-Martial - Robertson orders that until the government conducts a hearing for Hamdan before a competent tribunal in accordance with the Third Geneva Conventions, he can only be tried in courts-martial, according to the same long-established military rules that apply to trials for US soldiers. [Washington Post, 11/9/2004; Boston Globe, 11/9/2004] Robertson’s ruling is the first by a federal judge to assert that the commissions are illegal. [Washington Post, 11/9/2004]
Hearings Immediately Recessed - When word of Robertson’s ruling comes to Guantanamo, Colonel Peter Brownback, presiding over a pretrial hearing for Hamdan, immediately gavels the hearing closed, declaring an “indefinite recess” for the tribunal. [Savage, 2007, pp. 195-196]
Ruling Applauded by Civil Libertarians, Rejected by Bush Lawyers - Anthony Romero, director of the American Civil Liberties Union; Eugene Fidell, president of the National Institute of Military Justice; and Michael Ratner, president of the Center for Constitutional Rights, all applaud Robertson’s ruling. [Boston Globe, 11/9/2004] The Bush administration rejects the court’s ruling and announces its intention to submit a request to a higher court for an emergency stay and reversal of the decision. “We vigorously disagree.… The judge has put terrorism on the same legal footing as legitimate methods of waging war,” Justice Department spokesman Mark Corallo says. “The Constitution entrusts to the president the responsibility to safeguard the nation’s security. The Department of Justice will continue to defend the president’s ability and authority under the Constitution to fulfill that duty.” [Washington Post, 11/9/2004; Boston Globe, 11/9/2004] He also says that the commission rules were “carefully crafted to protect America from terrorists while affording those charged with violations of the laws of war with fair process.” [Boston Globe, 11/9/2004]
Ruling May Affect Other Detainees - Though the ruling technically only applies to Hamdan, his civilian attorney, Neal Katyal, says it could affect other detainees. “The judge’s order is designed only to deal with Mr. Hamdan’s case,” Katyal says. “But the spirit of it… extends more broadly to potentially everything that is going on here at Guantanamo.” [USA Today, 11/9/2004]
Entity Tags: Mark Corallo, Neal Katyal, James Robertson, George W. Bush, Anthony D. Romero, Peter Brownback, Charlie Savage, US Supreme Court, American Civil Liberties Union, Salim Ahmed Hamdan
Timeline Tags: Torture of US Captives, Civil Liberties
A judge says that the designation “enemy combatant,” used to label detainees held by the US in Guantanamo Bay, is meaningless, throwing proceedings for hundreds of the men into what the Guardian describes as “chaos.” Tribunals had been held in Guantanamo Bay to determine whether detainees held there were “enemy combatants,” and it was thought that such designation was a necessary preliminary step to putting them on trial. However, the judge, Colonel Peter Brownback, says that it is not enough to designate a detainee as an “enemy combatant,” and that a tribunal must be proceeded by a designation that a detainee is an “unlawful enemy combatant,” as this is the wording used in the Military Commissions Act, which established the tribunals. Colonel Brownback throws out cases against detainees Omar Khadr and Salim Ahmed Hamdan, alleged to have been Osama bin Laden’s chauffeur, saying that a person “has a right to be tried only by a court that has jurisdiction over him,” and the court does not have that right. The ruling means that none of the other hundreds of detainees can be brought before the tribunals, because the incorrect designation was applied to all of them. However, the ruling is without prejudice, and the US can still try to re-designate detainees “unlawful enemy combatants” and bring them before tribunals. Defense attorney Kristine Huskey calls the situation a “shambles,” and says, “It’s another example of how everything has been so ad hoc. The Military Commissions Act was just not done thoughtfully.” Another defense attorney, Colonel Dwight Sullivan, comments, “The system right now should just stop… The commission is an experiment that failed and we don’t need any more evidence that it is a failure.” [Guardian, 6/5/2007]
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