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June 5th, 2007 - Military Judges Dismiss Charges for 2 Detainees
By William Glaberson
New York Times
June 5, 2007
Guantánamo Bay, Cuba, June 4 - The government’s new system for trying Guantánamo detainees was thrown into turmoil Monday, when military judges in separate decisions dismissed war crimes charges against two of the detainees.
The rulings, the latest legal setbacks for the government’s effort to bring war crimes charges against detainees, could stall the military’s prosecutions here.
The decisions did not turn on the guilt or innocence of the detainees, but rather made essentially the same determination that the military had not followed procedures to declare the detainees “unlawful enemy combatants,” which is required for the military commission to hear the cases.
Pentagon officials described the rulings as raising technical and semantic issues, and said that they were considering appeals. If appeals failed, they said, they could go through the process of redesignating the detainees.
But military lawyers said the rulings exposed a flaw that would affect every other potential war-crimes case here. And the rulings brought immediate calls, including from some on Capitol Hill, for Congress to re-examine the system it set up last year for military commission trials and, perhaps, to consider other changes in the legal treatment of Guantánamo detainees.
In an interview, Senator Arlen Specter of Pennsylvania, the senior Republican on the Judiciary Committee, said after the first of the two rulings Monday that the decision raised significant issues and could prompt Congress to re-evaluate the legal rights of detainees, including Congress’s decision last year to revoke the rights of detainees to file habeas corpus suits to challenge their detentions.
“The sense I have is that there’s an unease, an uncomfortable sense about the whole Guantánamo milieu,” Mr. Specter said, adding, “There’s just a sense of too many shortcuts in the whole process.”
Whatever the ultimate legal ramifications of Monday’s rulings, they are another in a string of unexpected detours in the government’s five-year effort to establish a special legal system for trying foreign terrorism suspects. The current commission system was approved by Congress after the Supreme Court last June struck down the administration’s first plan for holding war crimes trials.
The military judges said Congress authorized the bringing of war-crimes charges against detainees who had been declared by military tribunals to be “unlawful enemy combatants.” But they said the tribunals held at Guantánamo, known as combatant status review tribunals, or C.S.R.T.’s, had determined only that the detainees were enemy combatants, without making the added determination that their participation was “unlawful.”
The international law of war defines unlawful combatants as fighters who, for example, do not wear military uniforms and conceal their weapons.
Monday’s rulings came in the cases of the only Canadian detainee, Omar Ahmed Khadr, and a Yemeni detainee, Salim Ahmed Hamdan. Mr. Hamdan’s appeal of a prior effort to prosecute him led to a Supreme Court decision last June in which the justices struck down the administration’s first system for war-crimes trials.
The military judge in Mr. Hamdan’s case, Capt. Keith Allred of the Navy, said the Pentagon had failed to obtain the necessary enemy combatant classification of Mr. Hamdan, who is accused of being the Qaeda driver for Osama bin Laden.
Mr. Hamdan’s longtime military lawyer, Lt. Cmdr. Charles Swift said that, though his client was unlikely to obtain freedom because of the decision, “It was once again a victory for the rule of law.”
The judge in Mr. Khadr’s case, Peter E. Brownback III, an Army colonel, said since the detainee had not been declared an unlawful enemy combatant, the military court did not have jurisdiction over the case and the proceedings could not continue. “A person has a right to be tried only by a court which he knows has jurisdiction over him,” Judge Brownback said from the bench in the military courtroom here.
Mr. Khadr, who was 15 when he was captured in Afghanistan, is charged with killing an American soldier, spying, supporting terrorism and other charges.
The White House declined on Monday night to comment on the decisions. Beth G. Kubala, an Army major who is the spokeswoman for the Office of Military Commissions at the Pentagon, said that the day’s ruling demonstrated that the military judges operated independently. But she suggested that the military did not view the double defeat as paralyzing to its prosecutions of war crimes.
“The public should make no assumptions,” Ms. Kubala said, “about the future of military commissions.”
A Pentagon statement said: “We believe that Congress intended to grant jurisdiction under the Military Commissions Act to individuals, like Mr. Khadr, who are being held as enemy combatants under existing C.S.R.T. procedures.”
But Mr. Specter said it was “dead wrong” to assert that Congress intended to permit prosecution of detainees who had not been declared unlawful enemy combatants.
So far, three detainees have been charged with war crimes under the law passed last year, including Mr. Khadr and Mr. Hamdan. The third detainee, David Hicks, pleaded guilty earlier this year and was sent to his native Australia. Prosecutors have said they may file such war crimes charges against about 80 of the 380 detainees here.
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 they appeared to ignore principles of the international law of war, which sanctions the violence of battle without classifying it as a war crime.
The military could repair the problem raised by the judges Monday by holding new combatant status review hearings to determine if each of the detainees slated for war-crimes charges was an unlawful combatant.
But 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?” asked Colonel Sullivan.
Some experts on military law said the new tangle of legal challenges would almost certainly cause extensive delays at a time when the administration has been pressing to show that its legal proceedings at Guantánamo were moving forward.
David W. Glazier, a retired Navy commander who is an associate professor at the Loyola Law School in Los Angeles, said it would be cumbersome for the military to get new determinations that the detainees were unlawful combatants.
“All the individuals that the government wants to charge will have to go through the C.S.R.T. process again,” Mr. Glazier said.
Some legal experts said subjecting the detainees to new combatant status hearings could create additional problems for the administration. The combatant status panels have been among the most criticized features of the Pentagon’s legal system here, in part because detainees are not permitted lawyers and are not allowed to see much of the evidence against them.
In a recent case in federal appeals court in Washington, the Justice Department acknowledged that in some cases, Pentagon officials disagreed with findings from combatant status panels that detainees were not enemy combatants. In some of those cases new hearings were ordered and those detainees were determined to be enemy combatants after all.
Adam Liptak contributed reporting.
Copyright 2007 The New York Times Company