Kangaroo courts at risk in Guantanamo

Monday, June 04, 2007
http://www.leninology.blogspot.com/

Bush's policy of military tribunals for detainees in Guantanamo - we would be barbaric to say 'suspects', since most of them don't appear to be suspected of anything specific - has hit a welcome legal blockage. The ruling dismissing charges in Omar Ahmad Khadr's case, which stated that the whole procedure is flawed, came from a US army colonel appointed to oversee one of the tribunals. That means it's serious, or so I'd guess. The "flaw" is that "Congress authorized charges only against detainees who had been determined to be unlawful enemy combatant". However, "the military here has determined only that Khadr was an enemy combatant. Military lawyers said the same flaw would affect every other potential war crimes case here."

None of the detainees have been found to be "unlawful" enemy combatants. I expect that Camp Delta (née X-Ray) will be wound up at some point in the distant future, since it is not the main focus of detention policy, despite being the most visible. All evidence to date points to it being an indefinite holding pen for small fry, and people who were in the wrong place at the wrong time, as well as a very visible form of intimidation. When the US doesn't kill any senior Al Qaeda leaders that it can find, it claims to detain them in unknown locations apart from Guantanamo. (Khalid Sheikh Mohammed, for instance, spent only six months in Guantanamo - reportedly - and his location is kept secret, even now that he has confessed to everything from the murder of Thomas Becket to the framing of Martha Stewart.) Of course, one shouldn't underestimate the ability of the Bush administration to organise a reversal. An earlier ruling from a US district court insisting that detainees should be protected by the constitution if there was any doubt as to their 'unlawful' status was thrown out by a three judge panel including one John Roberts, whom Bush appointed to the Supreme Court the following week. The Republicans are particularly adept at this kind of thing. Yet, the networks of secret prisons and rendition points are probably far more valuable to them than the gulag in Guantanamo, which even the bumpkin billionaire Thomas Friedman thinks is an "embarrassment".


Huge setback to Bush's military tribunals at Guantánamo
By William Glaberson
Monday, June 4, 2007
http://www.iht.com/articles/2007/06/04/news/gitmo.php

GUANTÁNAMO BAY, Cuba: A military judge here Monday dismissed war crimes charges against a Canadian prisoner, saying there was a flaw in the procedure that the military has used to file such charges against Guantánamo detainees.

The ruling in the case of Omar Ahmed Khadr will probably stall the military's war-crimes prosecutions and there were immediate calls from critics for Congress to re-examine the legal system it set up last year for the war-crimes trials by military commissions.

The military judge, a U.S. Army colonel, said that Congress authorized charges only against detainees who had been determined to be unlawful enemy combatants, but that the military here has determined only that Khadr was an enemy combatant. Military lawyers said the same flaw would affect every other potential war crimes case here.

The ruling will not free Khadr, who is accused of killing an American soldier in Afghanistan, and the military prosecutors are permitted to re-file their murder and terrorism charges against him. But the ruling appeared to raise far-reaching questions about the future of the legal proceedings because it involved central principles of detention procedures.

The military judge, Peter Brownback, said that the military commission lacked the jurisdiction to hear the case against Khadr because he was not designated an "unlawful" enemy combatant by an earlier military hearing that considered whether he was properly held at Guantánamo.

"A person has a right to be tried only by a court which he knows has jurisdiction over him," Brownback said from the bench in the military courtroom.

Under directives from President George W. Bush and senior Defense Department officials, military officials have held detainees after finding simply that they were "enemy combatants."

Those procedures have long drawn criticism, with some opponents of the administration's policies saying they appeared to ignore principles of the international law of war that permit the violence of battle without classifying it as a war crime.

Brownback said a provision of the law Congress passed last year permitted a commission to hear a war crimes case only if a prior hearing - known as a combatant status review tribunal - had determined that a prisoner was an "unlawful enemy combatant."

Without the additional finding that Khadr was an unlawful combatant, the judge said, the military commission lacked the jurisdiction to hear the case. The military judge acted on his own, with no request from the defense.

The chief of the military defense attorneys at Guantánamo Bay, Dwight Sullivan, a U.S. Marine colonel, said the ruling could spell the end of the war-crimes trial system set up last year by Congress and Bush after the Supreme Court threw out the previous system, The Associated Press reported from Guantánamo.

Khadr, who was 15 when he was captured in Afghanistan and who is now 20, will remain at the U.S. military base along with about 380 other men suspected of links to Al Qaeda and the Taliban.

Sullivan said that the dismissal would have a "huge" impact because none of the detainees had 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 said. "It is a system of justice that does not comport with American values."

Sullivan said that to reclassify the prisoners as "unlawful" combatants, the whole review system would have to be overhauled, a time-consuming act.

The new system gives prosecutors 72 hours to appeal, but the court designated to hear the appeal - known as the court of military commissions review - does not even exist, Sullivan said.

Sullivan said that the judge hearing the case of the only other Guantánamo detainee charged with crimes was not bound by Brownback's ruling, but that he expected the same decision.

The other detainee is Salim Ahmed Hamdan, who is accused of chauffeuring Osama bin Laden and of being the Qaeda chief's bodyguard.

The only other detainee charged under the new system, David Hicks of Australia, pleaded guilty in March to providing material support to Al Qaeda and is serving a nine-month sentence in Australia.