Guantanamo judges toss out 2 detainees’ cases

GUANTANAMO BAY NAVAL BASE, Cuba - Military judges dismissed charges Monday against a Guantanamo detainee who chauffeured Osama bin Laden and another who allegedly killed a U.S. soldier in Afghanistan, marking a stunning setback to Washington's attempts to try detainees in military court.

In back-to-back arraignments for Canadian Omar Khadr and Salim Ahmed Hamdan, of Yemen, the U.S. military's cases against the alleged al-Qaida figures dissolved because, the two judges said, the government had failed to establish jurisdiction.

They were the only two of the roughly 380 prisoners at Guantanamo charged with crimes, and the rulings stand to complicate efforts by the United States to try other suspected al-Qaida and Taliban figures in military courts.

Hamdan's military judge, Navy Capt. Keith Allred, said the detainee is "not subject to this commission" under legislation passed by Congress and signed by President George W. Bush last year. Hamdan is accused of chauffeuring bin Laden's and being the al-Qaida chief's bodyguard.

The new Military Commissions Act, written to establish military trials after the U.S. Supreme Court last year rejected the previous system, is full of problems, defense attorneys argued.

The judges agreed that there was one problem they could not resolve — the new legislation says only "unlawful enemy combatants" can be tried by the military trials, known as commissions. But Khadr and Hamdan had previously been identified by military panels only as enemy combatants, lacking the critical "unlawful" designation.

The surprise decisions do not spell freedom for the detainees, who are imprisoned here along with about 380 other men suspected of links to al-Qaida and the Taliban.

Khadr was 15 when he was captured after a firefight in Afghanistan in 2002 in which he allegedly killed a U.S. soldier and was wounded himself. He is now 20.

Khadr, appearing in the courtroom with a beard and wearing an olive-green prison uniform, seemed uninterested when Army Col. Peter Brownback, Khadr's judge, threw out the case. Khadr focused on his own image on a computer screen that showed a live TV broadcast of the proceedings.

An end to the trial system?
The chief of military defense attorneys at Guantanamo Bay, Marine Col. Dwight Sullivan, said the dismissal of the case against Khadr could mean the end of the war-crimes trial system hurriedly set up last year by Congress and Bush after the Supreme Court threw out the previous system.

"Once again, the military-commission system has demonstrated that it is a failure," Sullivan said. "You can't just set up a new system of justice and call it justice." Sullivan wants the cases to be tried instead in regular U.S. federal courts, according to NBC News.

But legal experts said Brownback apparently left open the door for a retrial for Khadr, and that the Defense Department can possibly fix the jurisdictional problem by holding new "combat status review tribunals" for any detainee headed to trial.

Sullivan said the dismissal has "huge" impact because none of the detainees held at this isolated military base in southeast Cuba has been found to be an "unlawful" enemy combatant.

"It is not just a technicality; it's the latest demonstration that this newest system just does not work," Sullivan told journalists. "It is a system of justice that does not comport with American values."

But Pentagon spokeswoman Major Beth Kubala issued a statement after the Khadr ruling that stated that the judge had dismissed Khadr's charges "as a technical matter." She said the government has requested a 72-hour delay "to consider" filing an appeal.

The Military Commissions Act, signed by Bush last year, specifically says that only those classified as "unlawful" enemy combatants can face war trials here, Brownback noted.

The distinction is important because if they were "lawful," they would be entitled to prisoner of war status, which under the Geneva Conventions would entitle them to the same treatment under established military law that U.S. soldiers would get.

A Pentagon spokesman said the issue was little more than semantics.

Navy Cmdr. Jeffrey Gordon told The Associated Press said the entire Guantanamo system was set up to deal with people who act as "unlawful enemy combatants," operating outside any internationally recognized military, without uniforms, military ranks or other things that make them party to the Geneva Conventions.

"It is our belief that the concept was implicit that all the Guantanamo detainees who were designated as 'enemy combatants' ... were in fact unlawful," Gordon said.

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