Published January 13, 2015
Military judges dismissed charges Monday against a Guantanamo detainee who chauffeured Usama 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 Qaeda 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 Qaeda 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 Qaeda 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 Qaeda 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.
The chief of military defense attorneys at Guantanamo Bay, Marine Col. Dwight Sullivan, said the dismissal of the case against Khadr could spell 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.
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."
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.
Sullivan said that reclassifying detainees as "unlawful," will require a time-consuming overhaul of the whole system. But Gregory McNeal, a law professor at Pennsylvania State University, said nothing prevents the Defense Department from reconvening 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 the case without prejudice.
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, Sullivan noted.
At the Khadr family home in Toronto, Khadr's sister Zaynab said she hoped the ruling would lead to his release.
"It seems like good news. I guess someone is starting to actually look at the charges and at him as a person rather than just the fact he's allegedly the enemy of the United States," the 27-year-old said in a telephone interview.
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 Qaeda 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.
Brownback ruled only minutes into Khadr's arraignment on charges of murder in violation of the law of war, attempted murder in violation of the law of war, conspiracy, providing material support for terrorism and spying.
"The charges are dismissed without prejudice," Brownback pronounced.
A prosecutor, Army Capt. Keith Petty, said he had been prepared to show Khadr was an unlawful combatant because he fought for Al Qaeda, and videotapes showed Khadr making and planting explosives targeting American soldiers.
The U.S. military has hoped to accelerate its prosecutions of Guantanamo detainees, with the Pentagon saying it expects to eventually charge about 80 of the 380 prisoners held at this isolated base. Now, delays seem likely.
The Supreme Court ruled in favor of Hamdan last June when it threw out the previous military tribunal system, set up in the wake of the Sept. 11, 2001, attacks. Congress quickly responded with new guidelines for war-crimes trials that Bush signed into law.
Hamdan was charged with conspiracy for his alleged membership in Al Qaeda, his purported role in plotting to attack civilians and civilian targets, and material support for terrorism — he is accused of transporting at least one SA-7 surface-to-air missile to shoot down U.S. and coalition military aircraft in Afghanistan in November 2001.