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Charges dismissed against Gitmo prisoner

  Military Law  -   POSTED: 2007/06/04 16:37

A military judge on Monday dismissed terrorism-related charges against a prisoner charged with killing an American soldier in Afghanistan, in a stunning reversal for the Bush administration's attempts to try Guantanamo detainees in military court. The chief of military defense attorneys at Guantanamo Bay, Marine Col. Dwight Sullivan, said the ruling in the case of Canadian detainee Omar Khadr could spell the end of the war-crimes trial system set up last year by Congress and President Bush after the Supreme Court threw out the previous system.

But Omar Khadr, who was 15 when he was captured after a deadly firefight in Afghanistan and who is now 20, will remain at the remote U.S. military base along with some 380 other men suspected of links to al-Qaida and the Taliban. The judge, Army Col. Peter Brownback, said he had no choice but to throw the Khadr case out because he had been classified as an "enemy combatant" by a military panel years earlier — and not as an "alien unlawful enemy combatant."

The Military Commissions Act, signed by Bush last year, specifically says that only those classified as "unlawful" enemy combatants can face war trials here, Brownback noted during the arraignment in a hilltop courtroom on this U.S. military base.

Sullivan said the dismissal of Khadr case has "huge" impact because none of the detainees held at this isolated military base in southeast Cuba has been found to be an "unlawful" enemy combatant.

"It is not just a technicality — it's the latest demonstration that this newest system just does not work," Sullivan told journalists. "It is a system of justice that does not comport with American values."

Sullivan said the judge hearing the case of the only other Guantanamo detainee currently charged with crimes is not bound by Brownback's ruling but that he expected the judge would make the same decision.

That other detainee is Salim Ahmed Hamdan, who is accused of chauffeuring Osama bin Laden and being the al-Qaida chief's bodyguard. His arraignment was scheduled for Monday afternoon.

Brownback's ruling came just minutes into Khadr's arraignment, in which he faced charges he committed 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.

"The charges are dismissed without prejudice," Brownback said as he adjourned the proceeding.

Khadr was captured after a firefight in 2002 in which he was wounded and allegedly killed a U.S. Army soldier with a grenade. He appeared in the courtroom with a beard and wearing an olive-green prison uniform.

Only three detainees held here have been charged under the new military tribunal system. The third, Australian David Hicks, pleaded guilty in March to providing material support to al-Qaida and is serving out a nine-month sentence in Australia.

A prosecuting attorney said he would appeal the dismissal of the case.

Under the new war-crimes trial system, the prosecution has 72 hours to appeal, but the court designated to hear the appeal — known as the court of military commissions review — doesn't even exist, Sullivan noted.

Even as the U.S. military hoped to rev up its prosecutions of Guantanamo detainees — with the Pentagon saying it expects to eventually charge about 80 of the 380 prisoners held at this isolated base — questions lingered about the legitimacy of the process.

The Supreme Court, ruling in favor of a lawsuit brought by Hamdan, last June threw out a previous military tribunal system that was set up in the wake of the Sept. 11, 2001, attacks, calling it unconstitutional. Congress responded with new guidelines for war-crimes trials and Bush signed them into law.

Hamdan's attorney, Navy Lt. Cmdr. Charles Swift, told The Associated Press he will challenge the new system, insisting it also is unconstitutional.

For one, the Military Commissions Act retroactively made certain acts such as conspiracy a crime, Swift said.

"This case raises significant questions" about the separation of powers, Swift said. "Congress cannot violate the Constitution to fix things ... but they are backdating anything and making it a crime."

Hamdan is charged with conspiracy — centered on his alleged membership in al-Qaida and purported role in plotting to attack civilians and civilian targets — and with providing material support for terrorism. As part of the second charge, Hamdan is accused of transporting at least one SA-7 surface-to-air missile to shoot down U.S. and coalition military aircraft in Afghanistan in November 2001.

Hamdan's alleged war crimes were committed between February 1996 and November 2001, according to the charge sheet. Swift, in the interview, said some acts predate the start of the Bush administration's war against terrorism, saying it generally is considered to be Sept. 11, 2001.

But Army Lt. Col. William Britt, the chief prosecutor in the Hamdan case, told the AP there is no established date when hostilities commenced and that the 1993 bombing of the World Trade Center could be construed as the war's opening shot.

In an interview Sunday at Andrews Air Force Base outside Washington — as prosecutors, defense attorneys, human rights monitors and journalists waited to board a plane to Guantanamo for the arraignments — Britt said he expects a courtroom battle over the matters Swift raised.

"These are novel issues," Britt said. "We're talking about new legislation, with the Military Commissions Act of 2006. We, the government, are looking forward to litigating (them)."

The son of an alleged al-Qaida financier, Khadr is accused of killing U.S. Army Sgt. Christopher Speer with a grenade during a firefight in Afghanistan on July 27, 2002.

Khadr's attorneys had decried the charges against him, saying he was a child soldier and should be rehabilitated, not imprisoned.

"The U.S. will be the first country in modern history to try an individual who was a child at the time of the alleged war crimes," the attorneys said in a joint statement in April.

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