US court dismisses Guantánamo charges

US court dismisses Guantánamo charges
By Demetri Sevastopulo in Washington
Copyright The Financial Times Limited 2007
Published: June 4 2007 21:56 | Last updated: June 5 2007 03:28



The White House suffered an embarrassing setback in its effort to try detainees at Guantánamo Bay on Monday when military judges threw out all charges against the first two prisoners to come before the newly-constituted commission.

Two judges, ruling in two separate cases, dismissed all charges against Omar Khadr, a 20-year-old Canadian who has been held at Guantánamo for five years, because the court did not have jurisdiction to try “enemy combatants.” A judge also threw out the case against Salim Ahmed Hamdan, a former driver for Osama bin Laden.

The Bush administration had hoped the military commissions’ proceedings for Mr Hamdan and Mr Khadr would put an end to the years of legal wrangling that have plagued the system created after the US invasion of Afghanistan.

Congress in 2006 approved the commissions to try prisoners after the Supreme Court ruled that the initial military tribunals created by the Bush administration breached US law and the Geneva Conventions.

Colonel Peter Brownback, the military judge presiding over the Khadr case, ruled that Congress intended that the commissions could only consider the cases of ”unlawful enemy combatants”.

Lawyers for Mr Hamdan later persuaded navy captain Keith Allred, the presiding judge, to dismiss that case on the same grounds.

Some human rights groups said Monday’s rulings underscored the “flawed nature” of the military commissions.

”The dismissal of charges against Khadr is further evidence that this jury-rigged system is incapable of delivering justice,” said Priti Patel, a Human Rights First lawyer who observed the proceedings at Guantánamo.

“If the US has evidence that Khadr or any other detainee committed war crimes, it should prosecute them either in the tried and true military justice system or, where appropriate, the criminal justice system,” she said.

Robert Gates, the US defence secretary, is understood to want to close Guantánamo, and bring any prisoners for trial to the US, but so far he has failed to persuade other parts of the administration, including the office of Dick Cheney, vice-president.

Hina Shamsi, a senior lawyer at Human Rights First, said the administration could appeal against the decision within 72-hours, but pointed out that an appeals court did not exist, and said any attempt to convene an “ad hoc” court “underscored how flawed the system is”.

”If the administration has any sense, this would be the fatal blow to the military commissions,” said Jennifer Daskal, a Human Rights Watch lawyer who also attended the proceedings.

”It is an experiment that has run its course,” Ms Daskal added. ”Five-and-a-half years later and the military commissions have secured a single conviction - by guilty plea. The federal courts have prosecuted hundreds of terrorism cases, including dozens of international terrorism cases in this same time frame,” she said

The Pentagon said Monday’s rulings were based on a technicality. “We believe that Congress intended to grant jurisdiction,” said a Pentagon spokesman.

“We have had one technicality after another in five years, and not a significant terrorist suspect has been brought to justice in the military commission system,” said Tom Malinowski, Washington advocacy director for Human Rights Watch.

The decisions do not mean that the two detainees will be released. The Pentagon argues that it can hold them indefinitely as ”enemy combatants” in the so-called ”war on terror”.

J.D. Gordon, a Pentagon spokesman, said the administration believed Congress intended the Pentagon to be able to try ”enemy combatants” even if the actual language in the 2006 Military Commissions Act referred to ”unlawful enemy combatants”.

”We believe that Congress intended to grant jurisdiction... to individuals, like Mr Khadr, who are being held as enemy combatants under the existing Combatant Status Review Tribunal procedure.”

John Hutson, a former navy judge advocate general who has been one of the loudest critics of the system, said the administration might simply try to address the negative ruling by arguing that the ”enemy combatant” classification was an ”administrative oversight [that could be]…reasonably easily corrected”.

The Khadr case in particular has sparked considerable attention internationally since the Canadian-born man was only a 15-year old ”boy soldier” when he was apprehended on the battlefield in Afghanistan, after allegedly killing an American.

The only other prisoner brought before the new commissions, Australian David Hicks, pleaded guilty to charges of supporting al-Qaeda. He is serving out a 9-month sentence in Australia.

The Pentagon wants to bring charges against about 80 of the roughly 380 detainees at Guantánamo.