Judges At Guantanamo Throw Out 2 Cases

Taken from Yahoo News, Tue Jun 5
By ANDREW O. SELSKY, Associated Press

With one word — "unlawful" — the only two war-crimes trials against Guantanamo detainees fell apart in a single day, marking a stunning setback to Washington's attempts to try dozens of detainees in military court.

Two military judges dismissed charges Monday against a Guantanamo detainee accused of chauffeuring Osama bin Laden and another who allegedly killed a U.S. soldier in Afghanistan.

Salim Ahmed Hamdan of Yemen and Omar Khadr, a Canadian who was 15 when he was arrested on an Afghan battlefield, were the only two of the roughly 380 prisoners at Guantanamo charged with crimes under a reconstituted military trial system.

Monday's rulings stand to complicate efforts by the United States to try other suspected al-Qaida and Taliban figures in military courts.

Defense attorneys and legal experts blamed the rush by Congress and President Bush last year to restore the war-crimes trials after the U.S. Supreme Court threw out the previous system, declaring it unconstitutional. In a remarkable coincidence, it was Hamdan's lawsuit that wound up in the Supreme Court.

In both of Monday's cases, the judges ruled that the new legislation says only "unlawful enemy combatants" can be tried by the military trials, known as commissions. But Khadr and Hamdan previously had been identified by military panels here only as enemy combatants, lacking the critical "unlawful" designation.

"The fundamental problem is that the law was not carefully written," said Madeline Morris, a Duke University law professor. "It was rushed through in a flurry of political pressure from the White House ... and it is quite riddled with internal contradictions and anomalies."

Prosecuting attorneys in both cases indicated they would appeal the dismissals. But the court designated to hear the appeals — known as the court of military commissions review — doesn't even exist yet, said Marine Col. Dwight Sullivan, chief of military defense attorneys at Guantanamo Bay.

Army Maj. Beth Kubala, spokeswoman for the Office of Military Commissions that organizes the trials, said "the public should make no assumption about the future of military commissions."

She said they will continue to operate openly and fairly and added that dismissals of the charges "reflect that the military judges operate independently."

She declined to comment on how the Office of Military Commissions planned to respond to the setbacks, saying she didn't want to speculate.

Military prosecutors declined to appear before reporters after their cases collapsed.

The distinction between classifications of enemy combatants is important because if they were "lawful," they would be entitled to prisoner of war status under the Geneva Conventions.

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

Navy Cmdr. Jeffrey Gordon said the entire Guantanamo system deals with people who act as "unlawful enemy combatants," operating outside any internationally recognized military, without uniforms 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.

But Morris said the Military Commissions Act defines a lawful enemy combatant, in addition to a uniformed fighter belonging to a regular force — as "a member of a militia, volunteer corps or organized resistance movement belonging to a state party engaged in such hostilities and who meets four additional criteria."

The dismissals of the cases do not spell freedom for Khadr or Hamdan.

"It is very difficult when practical conditions for him don't change," said Joseph McMillan, one of Hamdan's attorneys.

Still, Hamdan's military attorney, Navy Lt. Cmdr. Charles Swift, said his client "is relieved" by Allred's ruling.

"He hopes he gets a fair trial and, like the rest of us, is patiently waiting for it," Swift told reporters.

Sullivan, the chief of military defense attorneys at Guantanamo Bay, said the dismissal of Khadr's case could spell the end of the war-crimes trial system. He said 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."

Sullivan said reclassifying detainees as "unlawful" would require a time-consuming overhaul of the Combatant Status Review Tribunals that first classified them as enemy combatants. But Gregory McNeal, a law professor at Pennsylvania State University, said nothing prevents the Defense Department from reconvening the hearings for detainees headed to trial and declaring them to be "unlawful" combatants.

Carl Tobias, a law professor at the University of Richmond, said a retrial is possible because Brownback dismissed Khadr's case without prejudice. Hamdan's case also was dismissed without prejudice.

U.S. Rep. Jerrold Nadler, a New York Democrat, said he plans to hold hearings on the Military Commissions Act, which he said is "riddled with problems and created a process that operates outside the rule of law — it has crippled our ability to deal with the real criminals still being held at Guantanamo."

The only other detainee charged under the new system, Australian David Hicks, pleaded guilty in March to providing material support to al-Qaida and is serving a nine-month sentence in Australia. Sullivan said the dismissal of the Khadr case raised questions about the legitimacy of Hicks' conviction.

But Hicks' lawyer, David McLeod, said Tuesday that his client was unlikely to challenge his conviction now that he had the certainty of a release date.

"I don't think it's helpful to go down that path at the moment for David," McLeod told Australian Broadcasting Corp. radio. "He has chose a route and he proposes to continue down that route."

Hicks' father Terry Hicks agreed with the lawyer, adding that his son could he ordered to serve the suspended six years and three months balance of his sentence if he appealed and lost.