June 2007

Judge's ruling casts doubt on Guantanamo trials

By Jane Sutton
Mon Jun 4, 6:48 PM ET

Reuters

A U.S. war crimes tribunal at Guantanamo came to a screeching halt on Monday when a military judge dropped all the charges against a young Canadian in a ruling that could preclude trying any of the 380 prisoners any time soon.

Army Col. Peter Brownback, the judge, said the military tribunal lacked jurisdiction over Canadian Omar Khadr because he did not meet the strict definition of those subject to trial under a law the U.S. Congress drafted last year.

"It's not a technicality. It's another demonstration that the system simply doesn't work," said the tribunals' chief defense counsel, Marine Col. Dwight Sullivan.

The judge said a military review board had labeled Khadr an "enemy combatant" during a 2004 administrative hearing in Guantanamo. But the Military Commissions Act adopted by the U.S. Congress in 2006 said only "unlawful enemy combatants" could be tried in the Guantanamo tribunals.

Brownback said Khadr did not meet that strict definition because there had been no formal proceeding designating him as "unlawful."

Lawyers for another prisoner, Salim Ahmed Hamdan of Yemen, sought dismissal of the charges against him on the same grounds before a different military judge on Monday.

Hamdan, who is accused of driving and guarding Osama bin Laden, last year won a U.S. Supreme Court challenge that scrapped the first Guantanamo tribunal system.

Because none of the 380 foreign captives held at Guantanamo have been designated as unlawful enemy combatants, defense lawyers said they could not be tried unless they first faced proceedings reclassifying them as such.

Brownback dismissed the charges against Khadr, but left open the possibility they could be re-filed if Khadr went back before a review board and was formally reclassified.

It was the latest setback for the Bush government's efforts to put the Guantanamo detainees through some form of judicial process. It was forced to rewrite the rules last year after the U.S. Supreme Court deemed the old tribunals illegal.

AGE 15 WHEN CAPTURED

Khadr, who was captured in a firefight in Afghanistan at age 15, was accused of killing a U.S. soldier with a grenade and wounding another in a battle at a suspected al Qaeda compound in Afghanistan in 2002.

He was also charged with conspiracy and providing material support for terrorism along with murder, attempted murder and spying, for allegedly conducting surveillance of U.S. military convoys in Afghanistan.

Khadr, now 20 and said by his family to be in poor health, wore a tan prison uniform and a shaggy beard during the brief hearing and showed no reaction to the surprise ruling.

One of the prosecutors, Army Capt. Keith Petty, said Khadr clearly met the definition of an unlawful combatant because he fought for al Qaeda, which was not part of the regular, uniformed armed forces of any nation.

He said he was prepared to produce a video of Khadr wearing civilian clothes while planting a roadside bomb, as evidence he was an unlawful combatant.

But Brownback said the 2006 law authorizing the tribunals barred him from proceeding unless Khadr was formally declared to be unlawful.

Congress wrote the law after the U.S. Supreme Court struck down an earlier version of the tribunals established by President George W. Bush to try terrorism suspects at Guantanamo.

A Pentagon spokeswoman, Maj. Beth Kubala, portrayed the issue as a technical matter of conflicting definitions, and said prosecutors were weighing whether to appeal.

Rights groups called for an end to the tribunals and for the Guantanamo detention center to be closed.

"At this point, detainees have been more successful committing suicide in Guantanamo than the government has been successful in getting detainees to trial," said Amnesty International observer Jumana Musa.

Four prisoners have committed suicide at Guantanamo since the detention camp opened in 2002, including one last week.

"The current system of prosecuting enemy combatants is not only inefficient and ineffective, it is also hurting America's moral standing in the world and corroding the foundation of freedom upon which our nation was built," said U.S. Sen. Chris Dodd, a Connecticut Democrat running for president in the 2008 election.