Charges Dismissed Against Former Child Soldier And Driver, Both Still In The Concentration Camp.
GUANTĂ?NAMO BAY, Cuba, June 4 â€” The governmentâ€™s new system for trying GuantĂˇnamo 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 governmentâ€™s effort to bring war crimes charges against detainees, could stall the militaryâ€™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 â€śunlawful enemy combatants,â€? 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 GuantĂˇnamo detainees.
. . .The military judges said Congress authorized the bringing of war-crimes charges against detainees who had been declared by military tribunals to be â€śunlawful enemy combatants.â€? But they said the tribunals held at GuantĂˇnamo, known as combatant status review tribunals, or C.S.R.T.â€™s, had determined only that the detainees were enemy combatants, without making the added determination that their participation was â€śunlawful.â€?
The international law of war defines unlawful combatants as fighters who, for example, do not wear military uniforms and conceal their weapons.
Mondayâ€™s rulings came in the cases of the only Canadian detainee, Omar Ahmed Khadr, and a Yemeni detainee, Salim Ahmed Hamdan. Mr. Hamdanâ€™s appeal of a prior effort to prosecute him led to a Supreme Court decision last June in which the justices struck down the administrationâ€™s first system for war-crimes trials.
The military judge in Mr. Hamdanâ€™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. Hamdanâ€™s longtime military lawyer, Lt. Cmdr. Charles Swift said that, though his client was unlikely to obtain freedom because of the decision, â€śIt was once again a victory for the rule of law.â€?
The judge in Mr. Khadrâ€™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. â€śA person has a right to be tried only by a court which he knows has jurisdiction over him,â€? 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.