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Court Advances Military Trials for Detainees

  Military Law  -   POSTED: 2007/09/25 13:13

A special military appeals court, overturning a lower court ruling, on Monday removed a legal hurdle that has derailed war crime trials for detainees at Guantanámo Bay, Cuba. The ruling allows military prosecutors to address a legal flaw that had ground the prosecutions to a halt. The decision, by a three-judge panel of a newly formed military appeals court, was an important victory for the government in its protracted efforts to begin prosecuting some of the 340 detainees at Guantánamo.

The legal flaw involved a requirement by Congress that before the detainees could be tried in military tribunals, they had to be formally declared "alien unlawful enemy combatants." The problem for prosecutors was that while the detainees had been found by a military panel to be enemy combatants, they had not been specifically found to be unlawful.

Under the ruling, prosecutors will be able to present new evidence to the war crimes trial judge hearing a case to support their contention that a detainee was an unlawful combatant. Until now, only one case has been resolved, that of an Australian citizen who accepted a plea deal in March.

The legal flaw was cited in June by a military judge, Col. Peter E. Brownback III, in a ruling dismissing charges against a detainee.

The question of the detainees' formal status has stalled the entire war crimes system and frustrated administration officials.

The three appeals judges said yesterday that Judge Brownback had "abused his discretion in deciding this critical jurisdictional matter without first fully considering" the government's evidence. The appeals court sent the case back to Judge Brownback for further consideration.

A Pentagon spokesman, Cmdr. Jeffrey D. Gordon said last night that military officials were pleased by the ruling. "We welcome the court's decision," Commander Gordon said. "We will proceed in the most expeditious manner to get the military commission cases to trial."

Lawyers said there was legal uncertainly about whether the defense could appeal Monday's ruling, which came in the case of Omar Ahmed Khadr, a Canadian detainee who was charged with killing an American soldier in a firefight and other crimes.

Dennis Edney, Mr. Khadr's Canadian lawyer, said the defense was considering whether to appeal to the United States Court of Appeals for the District of Columbia Circuit. If there is an appeal, it could delay the resumption of Guantánamo cases yet again.

Mr. Edney said he was disappointed by the military panel's ruling but not surprised. "Omar Khadr still faces a process that is tainted, and designed to make a finding of guilt," he said.

But some military officials expressed relief that the hearing process appeared to be "back on track" as one put it.

The chief prosecutor, Col. Morris D. Davis of the Air Force, said that after the ruling in Mr. Khadr's case prosecutors would consider filing new charges against other detainees.

"We've got other cases that are ready," Colonel Davis said. "I think very shortly we'll be moving forward with some other cases." Colonel Davis has said as many as 80 detainees may eventually face war crimes charges,

On the same day in June that Judge Brownback dismissed Mr. Khadr's case, a second military judge made a similar ruling in the case of a Yemeni detainee, Salim Ahmed Hamdan. Mr. Hamdan's appeal of an earlier effort to prosecute him led to a Supreme Court decision in which the justices struck down the administration's first system for war-crimes trials.

Prosecutors asked the military judge in Mr. Hamdan's case, Capt. Keith Allred of the Navy, to reconsider, but he has not yet issued a reconsidered ruling.

The military appeals court said in its ruling yesterday that Judge Brownback was wrong in concluding that he did not have the authority to decide whether a detainee was an "unlawful" enemy combatant, which would give his court the power to hear a war-crimes case.

The court said the trial judge could hear the government's evidence that a detainee was an unlawful combatant. An unlawful combatant, for example, could be a fighter who does not wear a uniform and conceals his weapons.

In Mr. Khadr's case, prosecutors said their evidence included a videotape of Mr. Khadr, 15 at the time, preparing explosives for use against American forces.

In the ruling Monday, the military appeals judges, the United States Court of Military Commission Review, agreed that the law written by Congress did say that finding by a military panel that a detainee was an "unlawful" enemy combatant was a prerequisite for prosecution. But the judges said Congress intended the Guantánamo courts to apply usual procedures of military courts.

"This would include the common procedures used before general courts-martial permitting military judges to hear evidence and decide factual and legal matters concerning the court's own jurisdiction over the accused appearing before it," the appeals judges wrote.

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