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Homeland Security

American Forces Press Service

Charges Dismissed Against Canadian at Guantanamo

By Sgt. Sara Wood, USA
American Forces Press Service

NAVAL STATION GUANTANAMO BAY, Cuba, June 4, 2007 – In a decision that could affect the future of the military commission system, the judge in the military commission case of accused terrorist Omar Khadr today dismissed all charges against Khadr and adjourned the hearing.

Halting what was supposed to be a routine arraignment here, Army Col. Peter Brownback, the military judge, dismissed the charges based on a question about the jurisdiction of the military commission regarding the status of enemy combatants. Specifically, the conflict arose because Khadr’s Combatant Status Review Tribunal designated him as an “enemy combatant” and not an “unlawful enemy combatant.”

Brownback argued that the Military Commissions Act of 2006, the law that governs military commissions, requires that a detainee be an unlawful enemy combatant to be tried by commission. The law specifically designates between unlawful enemy combatants and enemy combatants, who fight for a legitimate armed forces.

Combatant Status Review Tribunals are one-time administrative hearings to determine each detainee’s status. Khadr’s was conducted in September 2004; the Military Commissions Act was signed into law Oct. 17, 2006. Brownback’s ruling points out an apparent discrepancy created by the Military Commissions Act’s new requirement that detainees be designated as “unlawful” enemy combatants to be tried by commissions, because it was signed into law after the majority of CSRTs had been completed at Guantanamo.

None of the detainees who have gone through the CSRT process at Guantanamo have been designated as unlawful enemy combatants, Marine Col. Dwight Sullivan, chief defense counsel for the Office of Military Commissions, told reporters after the ruling. All the detainees who have gone through the process have been designated either “enemy combatants” or “no longer enemy combatants.”

Sullivan called the ruling a critical blow to the military commissions system, as it could affect those detainees who will be tried in the future, including Salim Ahmed Hamdan, who is to face an arraignment this afternoon. This ruling could even affect Australian David Hicks, who was sentenced after a March 31 guilty plea to nine months in prison for providing material support to terrorism. Hicks’ CSRT designated him an enemy combatant, and his lawyers probably already are examining the issue raised today, Sullivan said.

“This is more evidence that the commission system does not work,” Sullivan said.

Khadr, a 20-year-old Canadian citizen, is charged with murder in connection with the death of Army Sgt. 1st Class Christopher Speer in Afghanistan in 2002, attempted murder, material support for terrorism, conspiracy and spying. He appeared at the hearing today in his tan detainee uniform, sporting unkempt hair and a beard.

Brownback raised the jurisdiction issue himself at the beginning of the hearing, pointing out the determination of Khadr’s CSRT and the requirement of the Military Commissions Act. The prosecution made several arguments to attempt to rebut Brownback’s assertion that the commission didn’t have jurisdiction to try Khadr.

First, the prosecution suggested that the reading of the Military Commission Act in conjunction with a presidential determination of 2002 did define Khadr as an enemy combatant. If that explanation wasn’t acceptable, the prosecution suggested that the military commission itself could determine Khadr’s status, or that the prosecution could present evidence today proving Khadr was an unlawful enemy combatant.

Navy Lt. Cmdr. William Kuebler, Khadr’s detailed defense counsel, declined to argue the jurisdiction issue because he said he has not had a chance to meet with Khadr and isn’t comfortable representing him.

After a brief recess, Brownback rejected the prosecution’s arguments, citing several sections of the Military Commissions Act. He also said that he doesn’t believe Congress intended for the commission to determine detainees’ status for the purposes of initial jurisdiction.

Brownback specifically noted that the law included as a new requirement the definition of “unlawful enemy combatant” for military commissions cases, and questioned if anyone in the government considered reviewing the CSRTs already done to bring them into compliance.

When Brownback dismissed the charges, he did so “without prejudice.” This means that the U.S. could revive the charges against Khadr, Sullivan explained.

He suggested that a better option would be to halt the commissions process altogether. “This indicates that the commissions system cannot proceed,” Sullivan said.

He noted that the U.S. federal court system has successfully prosecuted many terrorism cases and said that would be a better alternative to try detainees from the war on terror.

It is not clear how Khadr’s case will proceed. Brownback specifically ruled that the military commission is not the proper authority, under the provisions of the Military Commissions Act, to determine the status of a detainee. A two-step process, including the administrative determination of a detainee’s status, is critical in these cases, he said. However, he did not rule out the possibility that facts could be provided to prove Khadr is an unlawful enemy combatant.

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