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Homeland Security

Ruling Puts Guantanamo Trials in Doubt

04 June 2007

A U.S. military judge has dismissed charges against a detainee at the Guantanamo detention center, based on a technical issue that could affect all the current and potential charges against detainees. The Defense Department says the prosecutor will appeal the ruling. VOA's Al Pessin reports from the Pentagon.

The military judge, U.S. Army Colonel Peter Brownback, ruled Monday during a hearing at Guantanamo that charges against Canadian Omar Khadr are invalid. Khadr is charged with murder and other crimes related to the death of a U.S. soldier in Afghanistan in 2002.

Pentagon spokesman Commander J.D. Gordon told VOA the judge decided Khadr cannot be tried because an earlier process did not designate him an "unlawful enemy combatant," as a new law requires. Gordon says Khadr and the other detainees at Guantanamo were only designated "enemy combatants," without the word "unlawful."

"For all intents and purposes it's the same thing," said Commander Gordon. "It's just an issue of semantics. We've already said they were unlawful in 2004-2005 because of a variety of factors. They don't wear a uniform. They're not members of [the] armed forces of another nation-state. They don't display arms openly. They don't have a chain of command. All those issues make them unlawful enemy combatants. So they were already 'unlawful enemy combatants' back when they were designated as such, however the technical verbiage was just 'enemy combatant.'"

But the director of Terrorism and Counter-terrorism at Human Rights Watch in New York, Joanne Mariner, says that technicality has some important substance behind it.

"There is a question about whether some people held at Guantanamo are lawful combatants, members of the Taleban who were the armed forces of Afghanistan during the conflict with the United States, so, in fact, under international law, were considered soldiers and had the right to fight," said Joanne Mariner. "This is something that the United States has always dismissed. The court is correct to say there is a meaningful distinction between lawful and unlawful enemy combatants."

Judge Brownback at Guantanamo said Khadr could be re-charged if he undergoes a new hearing to determine his status, and if that process officially designates him an "unlawful enemy combatant." That is the phrase used in the law passed last year by Congress to establish what is called the Military Commissions process for trying Guantanamo detainees.

News reports from Guantanamo quote the chief defense attorney for the detainees, who is also a U.S. military officer, as saying the judge's ruling applies to all the detainees and is further evidence that the process is, in his words, "a failure" and should be stopped.

But the Pentagon spokesman, Commander Gordon, says the military prosecutor will appeal Monday's ruling to a review panel in Washington set up to supervise the detainee tribunals. Commander Gordon says it will be the first time the panel has been activated.

Joanne Mariner at Human Rights Watch says the military judge did the right thing in this ruling, but she is still not convinced the Military Commissions process is fair, or that this ruling will have a significant, long-term impact.

"It is showing that they are trying to follow the procedures as they exist," she said. "But I wouldn't go so far as to say this reflects a substantive independence. I think this is probably something that the military is going to remedy fairly easily."

Mariner says if the judge's ruling is upheld on appeal, a new status hearing could be held for Omar Khadr fairly soon, with others to follow in the coming months.

Khadr is a Canadian citizen. His case is particularly controversial because he was just 15 years old at the time he allegedly threw a hand grenade during a battle in Afghanistan that killed an American soldier. He has been in U.S. custody for five years.

In March, Australian David Hicks became the first detainee processed through the new tribunals. After a pre-trial agreement, he was convicted of one charge of providing material support to terrorism and is serving his nine-month sentence back in Australia. He had a different military judge, who did not address the difference in terminology between the old process and the new one.

Hicks and Khadr are two of only three detainees who have been formally charged under the new system. There are about 380 detainees at Guantanamo, but some have been approved for release without trial, and others may be released this year through a separate annual review process.

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