O'Reilly falsely claimed "activist judge" granted Geneva protections to Guantánamo detainees
FOX News Channel host Bill O'Reilly misrepresented a November 8 federal court ruling  on military tribunals set up to try Guantánamo Bay detainees, incorrectly claiming that the ruling declared the detainees to be prisoners of war (POWs). But the decision did not grant detainees POW status -- a designation that would entitle them to Geneva Convention protections. Rather, U.S. District Court Judge James Robertson's ruling, which specifically concerned suspected Al Qaeda member Salim Ahmed Hamdan, declared only that the detainees might be POWs under the Geneva Convention. According to the ruling, President George W. Bush therefore had no right to deny Geneva Convention protections to Hamdan, since the administration had failed to "convene a competent tribunal to determine whether Hamdan is entitled to such [POW] status."
O'Reilly opened the "Talking Points Memo " segment on the November 9 edition of FOX News Channel's The O'Reilly Factor by denouncing "[a]nother ruling by an activist judge that puts us all in danger." He then explained: "U.S. District Court Judge James Robertson ruled the Bush administration had no right to declare the man [Hamdan] an enemy combatant. Robertson went on to say Hamdan should be classified a prisoner of war and given Geneva Convention protections."
In his ruling, Robertson expressed no opinion on whether Hamdan "should be classified a prisoner of war and given Geneva Convention protections." He simply cited U.S. and international law requiring the Bush administration to convene a "competent tribunal" to determine whether Hamdan fits the classification. The POW classification entitles detainees to trial by court-martial, which affords defendants broader rights to contest the evidence the government uses against them. Only an "enemy combatant" can legally be subjected to the military tribunals that the Department of Defense has set up, as the process restricts defendants' rights. Robertson explained:
Hamdan has asserted his entitlement to POW status, and the Army's regulations provide that whenever a detainee makes such a claim his status is "in doubt." ... Thus, the government's position that no doubt has arisen as to Hamdan's status does not withstand scrutiny, and neither does the government's position that, if a hearing is required by Army regulations, "it was provided," 10/25/04 Tr. at 40. There is nothing in this record to suggest that a competent tribunal has determined that Hamdan is not a prisoner of war under the Geneva Conventions.
O'Reilly repeated his false statements even after FOX News Channel senior judicial analyst Judge Andrew P. Napolitano accurately summarized Robinson's ruling:
O'REILLY: All right. So what the Bush administration should have done was not just declare them an enemy combatant, but parade them in front of a military tribunal in Guantanamo?
NAPOLITANO: A fair tribunal in Guantanamo. It would have decided he's a prisoner of war and he gets Geneva protections, [or] he's not a prisoner of war, he goes before a military tribunal. That would have solved the problem.
O'REILLY: But this judge has gone further than that, saying that even the military tribunal designation might not stack up. You read it.
Because he [Robertson] wants all terrorists to be POWs.
NAPOLITANO: No, he doesn't.
O'REILLY: Yes, he does!