MILITARY COMMISSIONS

Judges toss 2 war crimes cases

 

crosenberg@miamiherald.com

GUANTANAMO BAY NAVY BASE, Cuba -- In back-to-back blows to the Bush administration Monday, two military judges separately dismissed war crimes charges against Osama bin Laden's driver and a Canadian captive accused of killing a U.S. soldier in Afghanistan in 2002.

Both judges -- a Navy captain and an Army colonel -- ruled that the Pentagon failed to bring charges that complied with a 2006 act of Congress for establishing a constitutional version of the first U.S. war crimes tribunal since World War II.

In essence, the judges found separately that a sweeping categorization of Guantánamo detainees as "enemy combatants" failed to distinguish between prisoners of war entitled to certain protections and "unlawful enemy combatants" coming before the war court.

On his first day as a commissions judge, Navy Capt. Keith Allred said in the case of Osama bin Laden's driver, Salim Hamdan:

"He is either entitled to the designation as a prisoner of war or he is an alien unlawful enemy combatant. Or he is entitled to another status."

But, he said, a system called Combatant Status Review Tribunals created by the Pentagon to review Guantánamo captives' detention did not distinguish between the three.

Allred said, however, the Defense Department could likely remedy the problem by giving Hamdan another review.

Earlier Monday, Army Col. Peter Brownback, judge in the case of Canadian captive Omar Khadr, 20, ruled the same way as Allred on a different set of arguments.

The decisions were particularly significant because the Pentagon is processing 14 so-called high-value detainees formerly held by the CIA -- among them alleged mastermind Khalid Sheik Mohammed -- on orders from President Bush to try them for war crimes.

But their hearings mimicked the method that drew Monday's dismissals.

The distinctions that collapsed both cases were a result of a war-on-terror legal system that has evolved since the 9/11 attacks, as the United States brought suspected terrorists here in an 8,000-mile air-shuttle from Afghanistan -- and sought to classify them as extrajudicial, extra-territorial captives.

Federal courts balked. Military defense attorneys rebelled. International law and human rights groups criticized the Guantánamo effort as extrajudicial, extra-territorial justice.

Twice, the U.S. Supreme Court ruled for detainee rights that the White House had sought to limit.

But Monday marked the first time in the on-again, off-again effort that a Pentagon-chosen judge tossed a case out. In fact, the two judges dismissed the only two cases that were currently on the military commissions docket.

The chief prosecutor, Air Force Col. Morris Davis, a frequent visitor to the Guantánamo media center, chose not to comment on Monday night.

Instead, it was left to Army Maj. Beth Kubala, a lawyer and spokeswoman for the process, to declare the decisions proof that U.S. military judges are free to rule independently.

"The public should make no assumptions about the future of the military commissions, " she cautioned. "The Office of Military Commissions will continue to operate in a manner that's fair, legitimate, transparent and open."

The chief defense counsel in Khadr's case, Marine Corps Col. Dwight Sullivan, declared the war court "a complete failure."

"The system right now should just stop, " Sullivan said. "The commission is an experiment that failed, and we don't need any more evidence that it is a failure."

In short, an "unlawful enemy combatant" has no right to be on the battlefield while a "lawful enemy combatant" may have the power to engage in warfare.

"If the U.S. government were at all wise, this would be a fatal blow to the military commissions, " said Jennifer Daskal, an observer from Human Rights Watch.

"In five and a half years, the military commissions have convicted one person -- by plea agreement."

In that deal, in late March, Australian captive David Hicks, 31, traded a guilty plea on a charge of providing material support for terrorism for a nine-month sentence, most served in his homeland.

However, Monday's decision doesn't mean that either Hamdan or Khadr is going home any time soon.

The U.S. claims the right to hold war-on-terror detainees in indefinite detention as "enemy combatants." At issue was the process that put them before the war court.

Said Amnesty International observer Jumana Musa: "At this point, detainees have been more successful committing suicide in Guantánamo than the government has been successful in getting detainees to trial."

Hamdan's attorney declared the father of two with a fifth-grade education "relieved" by the decision but said he still wants "his day in court" to prove he is innocent of war crimes.

Navy Cmdr. Charles Swift, a career military lawyer who directed both challenges that twice collapsed the U.S. case against Hamdan, renewed his call for trial of his client through the traditional U.S. Code of Military Justice.

Read more In the Courts stories from the Miami Herald

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