A military judge has thrown out the case against a Gitmo detainee, but that doesn't mean he will go free.
A military judge today dismissed charges against Canadian Guantanamo Bay detainee Omar Khadr, saying the matter is outside the jurisdiction of the new military tribunal system.Khadr was only fifteen when he was detained in Afghanistan in 2002. Five years later he's still in jail and still won't be released despite the charges against him being dropped. There are roughly 380 men still detained at Gitmo but only three have so far been charged under the new military tribunal system.
The ruling by army Colonel Peter Brownback came just minutes into Mr Khadr's arraignment, in which he faced charges that he committed murder in violation of the law of war, attempted murder in violation of the law of war, conspiracy and provided material support for terrorism and spying.
"The charges are dismissed without prejudice," Col Brownback pronounced as he adjourned the hearing at the Guantanamo Bay Naval Base. Mr Khadr had been classified as an "enemy combatant" by a military panel years earlier at Guantanamo, but because he was not classified as an "alien unlawful enemy combatant", Brownback said he had no choice but to throw the case out.
The Military Commissions Act, signed by President George W. Bush last year after the US Supreme Court threw out the previous war-crimes trial system, says specifically that only those classified as "unlawful" enemy combatants can face war trials at Guantanamo.
It's fairly easy to see that the Gitmo system is badly broken. It isn't a legal system, it's an oubliette - even when military judges and prosecutors do their best to make it fair, the Bush administration just isn't interested in living up to civilized standards of jurisprudence. Just one of the many things that should change when a new president occupies the Oval Office, because there's no chance of that needed change coming before then.
Update Over at National Review, an explanation of what comes next.
According to the defense lawyer in the case, none of the detainees at Gitmo have been found to be "unlawful" enemy combatants.Well, if it were monumental incompetence I think only "28%-er" cheerleaders would really be surprised anymore. But there's also a more worrying possibility - that it isn't monumental incompetence and that things are still exactly as the defense claims. That way, the Bush administration can appeal, delay, delay some more, go back and do-over every status review tribunal, delay some more...and keep every Gitmo detainee in their oubliette as well as prevent any more highly embarassing and damaging accounts of torture to surface in Gitmo hearings. I suppose we'll know pretty soon. 72 hours.
Briefly, an enemy combatant can be any enemy soldier. Such a combatant is unlawful if he has not comported with the laws of war — including belonging to a regular army, wearing a uniform, carrying weapons openly, and not targeting civilians. It should have been easy enough to do this with al Qaeda detainees. If it really has not been done, however, that could be a big problem since it would presumably necessitate re-doing all of the combatant status review tribunals before commissions could go forward.
The government is going to appeal. That, too, could be problematic according to the defense, which says they have only 72 hours to do so and the appellate court for commissions has not been constituted yet.
We don't know enough facts yet to make an assessment of what's going on here. Yet, if things are as the defense claims — and it bears remembering that very often they are not — this would be a demonstration of monumental incompetence. Let's hope that's not the case. Stay tuned.
Update Another one thrown out, for the same reason. This one was accused of being Bin Laden's driver and bodyguard!
In back-to-back arraignments for Salim Ahmed Hamdan of Yemen and Canadian Omar Khadr the U.S. military's cases against the alleged al-Qaida figures dissolved because, the two judges said, the government had failed to establish jurisdiction.What's going on here? Is it a revolt by military legal-eagles, sheer BushCo incompetence or a pre-planned attempt to bury all these detainees a while longer, thus keeping allegations of torture out of the news?
Hamdan is ``not subject to this commission'' under legislation passed by Congress and signed by President Bush last year, said Navy Capt. Keith Allred, Hamdan's military judge, Monday evening. Hamdan is accused of chauffeuring bin Laden and being the al-Qaida chief's bodyguard.
The new Military Commissions Act, written to establish military trials after the U.S. Supreme Court last year rejected the previous system, is full of problems, defense attorneys argued.