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The War Profiteers - War Crimes,
Kidnappings, Torture and Big Money |
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June 5th,
2007 - Military Judges Dismiss Charges for 2 Detainees |
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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 External link: http://www.nytimes.com/2007/06/05/world/americas/05gitmo.html |