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U.S. terror trials in doubt after Khadr
PAUL KORING
From Tuesday's Globe and Mail
June 5, 2007 at 9:00 AM EDT
GUANTANAMO BAY, Cuba — A no-nonsense military judge lobbed a bombshell into the Bush administration's controversial terrorist tribunals, dismissing all charges against Canadian Omar Khadr Monday because prosecutors failed to label him an "unlawful" combatant.
"Charges are dismissed without prejudice," Colonel Peter Brownback said brusquely, putting an abrupt end to Mr. Khadr's trial — at least for the moment.
The stunning ruling won't free Mr. Khadr, 20, from his Caribbean island gulag, but it could sink the already discredited tribunals set up to try detainees like him who are accused of terrorism.
In the courtroom, Mr. Khadr, with a shaggy beard and unkempt black hair, sat staring straight ahead, seemingly disdainful and perhaps deliberately uninterested in the legal drama swirling around him. He had refused to stand when the judge entered the room.
Prosecutors said they would appeal and the Pentagon said it was not a setback. Mr. Khadr was marched back to solitary detention, his black flip-fops slapping incongruously between the combat boots of his jailers.
"Its just semantics, that's exactly what this is," Pentagon spokesman Commander Jeffrey Gordon protested. "All the Guantanamo detainees who were designated as 'enemy combatants' … were in fact unlawful," he added.
Any appeal must be to the Court of Military Commission Review, created by the act. But it doesn't yet exist and no one has been named to sit on it.
Hours later after the first ruling, another judge, Navy Captain Keith Allred, similarly dismissed all charges against Salim Ahmed Hamdan, former driver for al-Qaeda leader Osama bin Laden.
Capt. Allred cited the same grounds, lack of jurisdiction because the government had failed to demonstrate Mr. Hamdan was an "unlawful" combatant.
It was a one-two punch that sent the tribunals, and the Bush administration, reeling because far more than labels were at stake.
Col. Brownback pointedly noted that Congress had established the tribunals under the Military Commissions Act with limited jurisdiction to try only "unlawful" combatants.
A lawful "enemy combatant" can kill and injure, immune from criminal culpability under the Geneva Conventions and the laws of war.
Prosecutors tried, unsuccessfully, to play a video purportedly showing Mr. Khadr, in civilian clothes setting roadside bombs, evidence, they said, proved he was an "unlawful" combatant.
Mr. Khadr's lawyers, both the current team and his just-dismissed U.S. lawyers have been trying — without success — to galvanize Canadian public support for the man they say was a child soldier, a victim, when he was 15 years old and tossed the grenade that killed a U.S. special forces medic in 2002.
Whether that final act in a firefight that left Mr. Khadr grievously injured was war between legitimate enemies or the unlawful criminal behaviour of a terrorist old enough to be held accountable is at the centre of his trial and the crux of Col. Brownback's decision to dismiss the charges.
"The decision of Col. Brownback today demonstrates the continued failure of the experimental legal system at Guantanamo Bay," said Dennis Edney, one of Mr. Khadr's Canadian lawyers who sat next to him during Monday's session.
Not so, said prosecutors. "We believe that Congress intended to grant jurisdiction under the military commissions act to individuals, like Mr. Khadr, who are being held as enemy combatants," said Major Beth Kubala, a spokeswoman for the Office of Military Commissions.
Military defence lawyers seized on Col. Brownback's ruling, calling it a major reversal for the government and saying it was time to shift all the cases from the special tribunals at this austere naval base to federal courts in the United States.
"We don't need any more evidence that it's a failure," said Colonel Dwight Sullivan, the chief of defence lawyers.
None of the 380 prisoners at Guantanamo has been declared an unlawful enemy combatant and, therefore, the ruling, if upheld, is "huge," he said and could scrap all future trials or force a re-evaluation of all detainees. The ruling may also undermine the legality of the plea-bargain struck by Australian David Hicks, now home serving a nine-month sentence. Mr. Hicks, a some-time sheep-shearer-turned Islamic extremist, was also never declared an "unlawful enemy combatant," Col. Sullivan said.
As the legal shock waves reverberated outward from this sleepy naval station that has become internationally synonymous and reviled as the locus of the Bush administration's effort to create an offshore justice system for alleged terrorists, it remained unclear whether the Khadr ruling was another bump on a tortuous legal road or a dead end.
"Today's ruling is the most significant setback since the U.S. Supreme Court threw out the original military commissions," said Jumana Musa of Amnesty International.
"It also signals that these commissions need to be scrapped and the detention facility at Guantanamo Bay must be closed."
The ruling seemed to galvanize Canadian opposition MPs who, until Monday, had mostly stayed on the sidelines as the Harper government pointedly refused to intervene on Mr. Khadr's behalf — unlike the British and Australian governments that arranged to have their detained citizens brought home.
"Whatever we may think about Mr. Khadr and his past, he is a Canadian citizen with rights," Liberal MP Michael Ignatieff said. "The Canadian government should take up his case actively," he added.
As news of the latest twist in Mr. Khadr's legal saga reached Ottawa, NDP MP Joe Comartin said: "We have a particular moral responsibility in this case and the history of that family should not prevent us from doing that."
Mr. Khadr's father was an al-Qaeda operative and an acolyte of Mr. bin Laden. He put Omar into al-Qaeda training camps in his teens.
With a report from Gloria Galloway in Ottawa
U.S. terror trials in doubt after Khadr
PAUL KORING
From Tuesday's Globe and Mail
June 5, 2007 at 9:00 AM EDT
GUANTANAMO BAY, Cuba — A no-nonsense military judge lobbed a bombshell into the Bush administration's controversial terrorist tribunals, dismissing all charges against Canadian Omar Khadr Monday because prosecutors failed to label him an "unlawful" combatant.
"Charges are dismissed without prejudice," Colonel Peter Brownback said brusquely, putting an abrupt end to Mr. Khadr's trial — at least for the moment.
The stunning ruling won't free Mr. Khadr, 20, from his Caribbean island gulag, but it could sink the already discredited tribunals set up to try detainees like him who are accused of terrorism.
In the courtroom, Mr. Khadr, with a shaggy beard and unkempt black hair, sat staring straight ahead, seemingly disdainful and perhaps deliberately uninterested in the legal drama swirling around him. He had refused to stand when the judge entered the room.
Prosecutors said they would appeal and the Pentagon said it was not a setback. Mr. Khadr was marched back to solitary detention, his black flip-fops slapping incongruously between the combat boots of his jailers.
"Its just semantics, that's exactly what this is," Pentagon spokesman Commander Jeffrey Gordon protested. "All the Guantanamo detainees who were designated as 'enemy combatants' … were in fact unlawful," he added.
Any appeal must be to the Court of Military Commission Review, created by the act. But it doesn't yet exist and no one has been named to sit on it.
Hours later after the first ruling, another judge, Navy Captain Keith Allred, similarly dismissed all charges against Salim Ahmed Hamdan, former driver for al-Qaeda leader Osama bin Laden.
Capt. Allred cited the same grounds, lack of jurisdiction because the government had failed to demonstrate Mr. Hamdan was an "unlawful" combatant.
It was a one-two punch that sent the tribunals, and the Bush administration, reeling because far more than labels were at stake.
Col. Brownback pointedly noted that Congress had established the tribunals under the Military Commissions Act with limited jurisdiction to try only "unlawful" combatants.
A lawful "enemy combatant" can kill and injure, immune from criminal culpability under the Geneva Conventions and the laws of war.
Prosecutors tried, unsuccessfully, to play a video purportedly showing Mr. Khadr, in civilian clothes setting roadside bombs, evidence, they said, proved he was an "unlawful" combatant.
Mr. Khadr's lawyers, both the current team and his just-dismissed U.S. lawyers have been trying — without success — to galvanize Canadian public support for the man they say was a child soldier, a victim, when he was 15 years old and tossed the grenade that killed a U.S. special forces medic in 2002.
Whether that final act in a firefight that left Mr. Khadr grievously injured was war between legitimate enemies or the unlawful criminal behaviour of a terrorist old enough to be held accountable is at the centre of his trial and the crux of Col. Brownback's decision to dismiss the charges.
"The decision of Col. Brownback today demonstrates the continued failure of the experimental legal system at Guantanamo Bay," said Dennis Edney, one of Mr. Khadr's Canadian lawyers who sat next to him during Monday's session.
Not so, said prosecutors. "We believe that Congress intended to grant jurisdiction under the military commissions act to individuals, like Mr. Khadr, who are being held as enemy combatants," said Major Beth Kubala, a spokeswoman for the Office of Military Commissions.
Military defence lawyers seized on Col. Brownback's ruling, calling it a major reversal for the government and saying it was time to shift all the cases from the special tribunals at this austere naval base to federal courts in the United States.
"We don't need any more evidence that it's a failure," said Colonel Dwight Sullivan, the chief of defence lawyers.
None of the 380 prisoners at Guantanamo has been declared an unlawful enemy combatant and, therefore, the ruling, if upheld, is "huge," he said and could scrap all future trials or force a re-evaluation of all detainees. The ruling may also undermine the legality of the plea-bargain struck by Australian David Hicks, now home serving a nine-month sentence. Mr. Hicks, a some-time sheep-shearer-turned Islamic extremist, was also never declared an "unlawful enemy combatant," Col. Sullivan said.
As the legal shock waves reverberated outward from this sleepy naval station that has become internationally synonymous and reviled as the locus of the Bush administration's effort to create an offshore justice system for alleged terrorists, it remained unclear whether the Khadr ruling was another bump on a tortuous legal road or a dead end.
"Today's ruling is the most significant setback since the U.S. Supreme Court threw out the original military commissions," said Jumana Musa of Amnesty International.
"It also signals that these commissions need to be scrapped and the detention facility at Guantanamo Bay must be closed."
The ruling seemed to galvanize Canadian opposition MPs who, until Monday, had mostly stayed on the sidelines as the Harper government pointedly refused to intervene on Mr. Khadr's behalf — unlike the British and Australian governments that arranged to have their detained citizens brought home.
"Whatever we may think about Mr. Khadr and his past, he is a Canadian citizen with rights," Liberal MP Michael Ignatieff said. "The Canadian government should take up his case actively," he added.
As news of the latest twist in Mr. Khadr's legal saga reached Ottawa, NDP MP Joe Comartin said: "We have a particular moral responsibility in this case and the history of that family should not prevent us from doing that."
Mr. Khadr's father was an al-Qaeda operative and an acolyte of Mr. bin Laden. He put Omar into al-Qaeda training camps in his teens.
With a report from Gloria Galloway in Ottawa