- The Washington Times - Monday, June 4, 2007

From combined dispatches

GUANTANAMO BAY NAVAL BASE, Cuba — Military judges dismissed charges yesterday against a Guantanamo detainee accused of chauffeuring Osama bin Laden and a Canadian Muslim accused of killing a U.S. soldier, throwing up roadblocks to the Bush administration’s attempt to try terror suspects in military courts.

In back-to-back arraignments for Salim Ahmed Hamdan of Yemen and Omar Khadr of Canada, the U.S. military’s cases against the al Qaeda suspects dissolved because, the two judges said, they did not meet the definition of those subject to trial under a law Congress enacted last year.

The judges agreed that the new legislation says only “unlawful enemy combatants” can face the military trials, known as commissions. But Khadr and Hamdan were identified by military panels only as enemy combatants, lacking the critical “unlawful” designation.

“It’s not a technicality. It’s another demonstration that the system simply doesn’t work,” said Marine Col. Dwight Sullivan, the tribunal’s chief defense counsel in the Khadr case. “Fundamentally, it is a system of justice that does not comport with American values.”

Because none of the 380 foreign captives held at Guantanamo has been designated as such, attorneys said, they could not be tried unless they first faced proceedings reclassifying them as unlawful enemy combatants. The Pentagon said the issue was little more than semantics.

A spokesman said the system does not deal with lawful combatants, who fight in uniform for a national army. The system was set up to determine whether a detainee acted as an “unlawful enemy combatant” who was not in an internationally recognized military, did not wear a uniform or rank insignia, did not carry arms openly and was not a party to the Geneva Conventions, he said.

“It is our belief that the concept was implicit that all the Guantanamo detainees who were designated as ‘enemy combatants’ … were in fact unlawful,” Navy Cmdr. Jeffrey Gordon told the Associated Press.

Col. Peter Brownback dismissed the charges against Khadr, but did so “without prejudice,” which legal scholars said leaves the possibility that charges could be refiled if the Defense Department could hold new “combat status review tribunals” for any detainee headed to trial.

A military prosecutor said the ruling would be appealed. Both Khadr and Hamdan will remain at the Guantanamo base.

“It is very difficult when practical conditions for him don’t change,” Joseph McMillan, one of Hamdan’s civilian attorneys, told reporters last night.

A military spokeswoman, Army Maj. Beth Kubala, said the prosecution had five days in which to file an appeal of the Khadr case, telling AP Television News that Col. Brownback’s ruling underscored the fairness of the system.

“The military commissions procedures and rules are robust and grant significant rights to the accused,” she said.

Col. Brownback issued his ruling just minutes into Khadr’s arraignment on charges of murder in violation of the law of war, attempted murder in violation of the law of war, conspiracy, providing material support for terrorism and spying.

Khadr is accused of killing an Army soldier with a grenade in a firefight, in which he was wounded. He appeared in the courtroom with a beard and wearing an olive-green prison uniform. He seemed oblivious to the ruling, calmly watching the judge throw out the case and looking not at Col. Brownback but at a computer screen at the defense table that showed a live TV broadcast of the proceedings.

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