.Judge Throws Out Charges in Guantánamo Prisoner Case
GUANTÁNAMO BAY, Cuba, June 4 — A military judge here dismissed the war crimes charges against a Canadian detainee today, saying there was a flaw in the procedure the military has used to file such charges against Guantánamo detainees.
The ruling in the case of the Canadian, Omar Khadr, is likely to stall the military’s war crimes prosecutions here. Critics of the prosecutions immediately called for Congress to reexamine the system it set up last year for military commissions to try detainees.
The military judge, Col. Peter E. Brownback III of the Army, said that Congress authorized the tribunals to try only those detainees who had been determined to be unlawful enemy combatants. But the military authorities here, he said, have determined only that Mr. Khadr was an enemy combatant, without making the added determination that his participation was “unlawful.”
Military lawyers here said the same flaw would affect every other potential war crimes case here. The ruling, the latest in a history of legal setbacks for the government’s effort to bring war-crimes charges against detainees, appeared to raise far-reaching questions, because it involved central principles of detention procedures.
Under directives from President Bush and senior Defense Department officials, military officials here have held detainees after finding simply that they were “enemy combatants.”
Those procedures have long drawn criticism, with some opponents of administration policies saying that they appeared to ignore principles of the international law of war, which permits the violence of battle without classifying it a war crime.
A military official said the Pentagon disagreed with the ruling, saying it had always been “implied” that Mr. Khadr was an unlawful combatant. The official said the Pentagon planned to appeal Colonel Brownback’s ruling. “This is just a semantic decision, is the way we are viewing it,” the official said.
The colonel’s ruling does not mean that Mr. Khadr will be freed. The military prosecutors are permitted to refile their murder and terrorism charges against him. They could repair the legal problem by holding a new hearing here, known as a combatant status review tribunal, to determine if he was an unlawful enemy combatant.
Colonel Brownback said in his ruling that the military commission set up to try Khadr lacked the jurisdiction to hear the case, because of the absence of the “unlawful enemy combatant” finding, which he said is required under a provision of the law passed last year by Congress. He acted on his own initiative, not in response to a request from the defense.
“A person has a right to be tried only by a court which he knows has jurisdiction over him,” the judge said from the bench in the military courtroom at the United States naval base here.
The chief military defense lawyer here, Col. Dwight Sullivan of the Marines, said he viewed the decision as having broad impact, because it underscored what he and other critics have described as a commission process that lacks international legitimacy and legal authority.
“How much more evidence do we need that the military commission process doesn’t work?” Colonel Sullivan said.
Last June, the Supreme Court struck down the Bush administration’s original plan for military commission trials. The principal flaw identified by the court was that the President had established them without Congressional authorization. The law cited by Judge Brownback yesterday was then passed by Congress.
NYT
The Bush administration, and his implementation of the War on Terror
The ruling in the case of the Canadian, Omar Khadr, is likely to stall the military’s war crimes prosecutions here. Critics of the prosecutions immediately called for Congress to reexamine the system it set up last year for military commissions to try detainees.
The military judge, Col. Peter E. Brownback III of the Army, said that Congress authorized the tribunals to try only those detainees who had been determined to be unlawful enemy combatants. But the military authorities here, he said, have determined only that Mr. Khadr was an enemy combatant, without making the added determination that his participation was “unlawful.”
Military lawyers here said the same flaw would affect every other potential war crimes case here. The ruling, the latest in a history of legal setbacks for the government’s effort to bring war-crimes charges against detainees, appeared to raise far-reaching questions, because it involved central principles of detention procedures.
Under directives from President Bush and senior Defense Department officials, military officials here have held detainees after finding simply that they were “enemy combatants.”
Those procedures have long drawn criticism, with some opponents of administration policies saying that they appeared to ignore principles of the international law of war, which permits the violence of battle without classifying it a war crime.
A military official said the Pentagon disagreed with the ruling, saying it had always been “implied” that Mr. Khadr was an unlawful combatant. The official said the Pentagon planned to appeal Colonel Brownback’s ruling. “This is just a semantic decision, is the way we are viewing it,” the official said.
The colonel’s ruling does not mean that Mr. Khadr will be freed. The military prosecutors are permitted to refile their murder and terrorism charges against him. They could repair the legal problem by holding a new hearing here, known as a combatant status review tribunal, to determine if he was an unlawful enemy combatant.
Colonel Brownback said in his ruling that the military commission set up to try Khadr lacked the jurisdiction to hear the case, because of the absence of the “unlawful enemy combatant” finding, which he said is required under a provision of the law passed last year by Congress. He acted on his own initiative, not in response to a request from the defense.
“A person has a right to be tried only by a court which he knows has jurisdiction over him,” the judge said from the bench in the military courtroom at the United States naval base here.
The chief military defense lawyer here, Col. Dwight Sullivan of the Marines, said he viewed the decision as having broad impact, because it underscored what he and other critics have described as a commission process that lacks international legitimacy and legal authority.
“How much more evidence do we need that the military commission process doesn’t work?” Colonel Sullivan said.
Last June, the Supreme Court struck down the Bush administration’s original plan for military commission trials. The principal flaw identified by the court was that the President had established them without Congressional authorization. The law cited by Judge Brownback yesterday was then passed by Congress.
NYT
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