GUANTANAMO BAY NAVY BASE, Cuba -- An Army judge ruled Wednesday against Omar Khadr's ''child soldier'' defense, dashing hopes of a dismissal of charges in the case of the Canadian who was captured in a firefight in Afghanistan at age 15.
The decision clears the way for a summer-time trial.
Khadr's Pentagon appointed attorney, Navy Lt. Cmdr. William Kuebler, had sought dismissal of charges on grounds that Khadr was too young at the time of the alleged offenses to be responsible for any alleged war crimes.
Prosecutors argued that Congress' Military Commissions Act did not distinguish between adults and minors in laying out a program for prosecuting alleged war-on-terror crimes.
Kuebler called the decision ``an embarrassment to the United States.''
Lawyers disclosed the decision Wednesday as the Pentagon's Office of Military Commissions was clearing news reporters from this remote base, following a hearing in the war-crimes court case of another detainee.
The office declined to hand out copies of the opinion issued by the judge, Col. Peter E. Brownback II, saying that prosecution and defense lawyers were still studying the ruling.
More hearings are expected in the Khadr case next week. He is now 21, and has grown to adulthood behind the razor wire at Guantánamo Bay.
Defense lawyers had cited international law, such as the Sierra Leone model, in asking the judge to dismiss war crimes charges against Khadr because he was 15 at the time of the alleged offense -- and as young as 11 when his father sent him to al Qaeda paramilitary camp training.
Instead, Khadr is to become ''the first child soldier tried for war crimes in modern history of war crimes tribunals,'' said Kuebler, a Navy judge advocate general, or JAG officer.
He added: 'In a brief opinion, issued almost three months after an oral argument, during which the judge asked not a single question of either side, Col. Brownback sides with the Pentagon view that Congress intended to authorize the trial of so-called `unlawful enemy combatants' irrespective of age.''
Khadr's father, Ahmed Saeed, who had immigrated to Canada before Omar was born in Toronto, was considered part of the al Qaeda inner circle in Afghanistan and Pakistan. He has since been killed in a Pakistani security forces raid, staged after his son was in U.S. custody.
The son was captured in a July 2002 firefight near Khost, Afghanistan, in which Delta Forces Sgt. 1st Class Christopher Speer, 28, of Albuquerque, N.M., was fatally wounded by a grenade.
Pentagon prosecutors say Omar Khadr threw the grenade that killed Speer, as a war crime. He faces charges as an al Qaeda foot soldier and murderer; his charge sheets seek life in prison, not the maximum penalty of death, in consideration of his age.
Khadr is the youngest ''enemy combatant'' at Guantánamo Bay today, where the Defense Department this week was holding about 280 detainees ahead of a military mission to release some long-held prisoners, further thinning the population at Camp Delta.
Kuebler, Khadr's Pentagon-assigned U.S. military defense attorney, has called on Canada to ask for release of Khadr, the only Canadian at Guantánamo, ahead of trial.
Other Western nations, notably Britain, sought and got return of their citizens at Guantánamo rather than have them face the first exclusively-U.S. war crimes tribunal since World War II.
Speer was killed, another Special Forces soldier was seriously wounded and several alleged al Qaeda gunmen were also killed inside the compound where Khadr was captured seven months into the U.S. invasion. American and allied forces employed both air and ground fire in the assault on what they believed was an al Qaeda compound.
Khadr was shot twice in the back by a U.S. commando in the final assault, according to details that have emerged in pre-trial arguments. The bullets tore through his back and out his front, leaving him for all-but dead and partially blind. U.S. medics treated him, transferred him to U.S. detention and interrogation at the Bagram Air Force Base, where he was held until after his 16th birthday -- and transferred to this remote U.S. Navy base, where he now awaits trial.
