· Technicality applies to all 385 inmates, colonel rules
· Canadian and Bin Laden's driver see cases dismissed
By Suzanne Goldenberg in Washington
Tuesday June 5, 2007
Guardian
The Bush administration's plans to bring detainees at Guantánamo Bay to trial were thrown into chaos yesterday when military judges threw out all charges against a detainee held there since he was 15 and dismissed charges against another detainee who chauffeured Osama bin Laden.
In back-to-back arraignments for the Canadian Omar Khadr and Salim Ahmed Hamdan, a Yemeni national, the US military's cases against the alleged al-Qaida figures were dismissed because, the judges said, the government had failed to establish jurisdiction.
Yesterday's decision by Colonel Peter Brownback to dismiss all charges against Mr Khadr on technical grounds has broad implications for the Bush administration's system of military tribunals because the technicality appears to apply to all 385 prisoners held at Guantánamo.
The dismissal of the case also undermines the administration's efforts to show that the military tribunals are based on sound legal practice and can provide detainees with a fair hearing, detainee lawyers said.
In his decision yesterday, Col Brownback said the Pentagon had merely designated Mr Khadr, a Canadian citizen facing charges of murder and terrorism, as an "enemy combatant", not an "unlawful enemy combatant", the term used by Congress last year in authorising the tribunals.
The Pentagon's lapse meant the tribunal did not have proper jurisdiction to try Mr Khadr. "A person has a right to be tried only by a court that has jurisdiction over him," Col Brownback told the court.
Mr Hamdan is accused of being Bin Laden's chauffeur and bodyguard. In his case, US Navy captain Keith Allred yesterday said Mr Hamdan is "not subject to this commission" under legislation passed by Congress and signed by President George Bush last year.
The new Military Commissions Act, written to establish military trials after the US supreme court last year rejected the previous system, is full of problems, defence attorneys argued.
Mr Hamdan last year won a US supreme court challenge that led to the scrapping of the first Guantánamo tribunal system.
Yesterday's rulings also suggest that none of the 385 other detainees at Guantánamo, held for more than five years without charge, can be brought to trial before the tribunals because they too have been designated merely as "enemy combatants", lawyers said yesterday.
"The system right now should just stop," Marine Corps Colonel Dwight Sullivan, the lead military defence lawyer, said.
"The commission is an experiment that failed and we don't need any more evidence that it is a failure."
Mr Khadr's defence team was equally scathing. "This is a shambles," said Kristine Huskey, who had been on Mr Khadr's defence team until last week when he sacked all of his American lawyers.
"It's another example of how everything has been so ad hoc. The Military Commissions Act was just not done thoughtfully."
Yesterday's ruling does not bring Mr Khadr any closer to freedom. Col Brownback threw out the charges "without prejudice", which means the Pentagon could issue new charges against him.
However, it exposes the hastiness with which Congress moved in October to bring in legislation authorising the tribunals after the supreme court threw out the earlier version.
Now, once again barely a year later, the tribunals have been thrown into legal limbo at their first outing.
In April, the first Guantánamo detainee to be charged, David Hicks, reached a plea bargain deal, thus avoiding trial.
Ms Huskey said that amid the confusion, one thing appeared clear. The detainees, held without charge since 2002, were likely to face further delays before having their day in court.
"What it does mean for Omar and all the detainees is that they are going to have a whole new process so that everyone can be charged," she said.
Special Reports:
Guantánamo Bay
Al-Qaida
United States
Comment:
Brent Mickum: Guantánamo's lost souls
Victoria Brittain: Facing up to Guantánamo
Interactive Guide:
Guantánamo Bay: five years on
In Pictures:
Focus on Guantánamo
Audio:
Sir Menzies Campbell on the morality of Guantánamo (10m 9s)
Full Text:
June 2006 US supreme court ruling on Guantánamo trials (pdf)
Guantánamo Campaigns:
Centre for Constitutional Rights
Amnesty International
Reprieve
Human Rights First
Human Rights Watch
Cageprisoners.com
Other Useful Links:
Guantánamo Bay official site
US department of defence's Guantánamo Bay page
From The Archive:
22.04.2002: Al-Qaida inmates 'outwitting interrogators'
15.04.2002: Amnesty sends US dossier of complaints over Afghanistan detainees
28.01.2002: Bush and Powell split over captives' status
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