WASHINGTON, 6 June 2007 — It is a decision that has rocked Washington, and one with international consequences.
With one word — “unlawful” — the only war-crimes trials against Guantanamo detainees fell apart, marking a stunning setback to the Bush administration’s attempts to try dozens of detainees in military court.
The White House now is being urged to re-examine the way it tries war-crimes suspects at Guantanamo Bay after American military judges dropped terrorism charges against two men being held at the prison in Cuba — Omar Khadr, a Canadian, and Yemen’s Salmi Ahmed Hamdan.
Col. Dwight Sullivan, the chief of US defense lawyers at Guantanamo, told reporters “the experience of the military commission system demonstrates that it’s a failure.” He said he viewed the decision as having broad impact because it underscored what he and other critics have described as a commission process that lacks international legitimacy and legal authority.
The New York Times reported yesterday that Pentagon officials may appeal Monday’s ruling, which they said centered on technical and semantic issues. But military lawyers said the rulings exposed a flaw that would affect every other potential war-crimes case at Guantanamo Bay. The rulings stand to complicate — and could even halt — efforts by the United States to try other suspected Al-Qaeda and Taleban figures in military courts.
Defense attorneys and legal experts blame the rush by Congress and President Bush last year to restore the war crimes trials after the US Supreme Court found the previous system unconstitutional. Hamdan was a central figure in that case. The appeals court envisioned in the Military Commissions Act (MCA), passed by Congress, following the Supreme Court ruling on Hamdan, has yet to be created.
“If the administration has any sense at all, this will be the death knell for the commissions,” Jennifer Daskal of Human Rights Watch told reporters, calling for terrorist suspects to be tried in US civilian courts.
The judges ruled that they lacked jurisdiction in the two men’s cases. Hamden is being held as the self-described driver and bodyguard of Al-Qaeda leader Osama Bin Laden. Khadr is charged in the death of Sgt. Christopher James Speer, a US soldier who was killed in Afghanistan in 2002 when his patrol was ambushed. Khadr, a Canadian, was 15 at the time of his capture in Afghanistan and remains the youngest detainee at Guantanamo. Monday’s rulings did not turn on the guilt or innocence of the detainees, but rather made essentially the same determination that the military had not followed procedures in declaring the detainees “unlawful enemy combatants,” which is required for the military commission to hear the cases.
The Bush administration, meanwhile, wasted no time in disagreeing with the military judges who threw out charges on the legal front of its “war on terror.” “We don’t agree with the ruling,” White House spokesman Tony Fratto told reporters in Prague where President George Bush kicked off a European tour that will take him to the Group of Eight summit in Germany today. Fratto maintained that the tribunals remain appropriate for dealing with foreign terrorism suspects, saying: “The system is taking great care to be within the letter of the law.”
Although government prosecutors were granted a 72-hour delay to the Khadr and Hamdan rulings while they consider their options for appeal, lawyers said that both Khadr and Hamdan will remain in legal limbo.
“Mr. Hamdan is both relieved (and) still hopes he’ll get a fair trial,” said Hamdan’s defense lawyer, Lt. Commander Charles Swift.
Swift said the military judges had “reaffirmed that the president is not a tribunal in and of himself.” He added: “If we go back to a system that’s tried and true, the court martial,” then lawyers can resume proving their clients’ innocence or guilt, “rather than playing these procedural games.”
None of the roughly 380 detainees at Guantanamo have been classified as “unlawful” enemy combatants, which is why the rulings could jeopardize the military commission system set up by Bush, said Marine Col. Dwight Sullivan.
“How much more evidence do we need that the military commission process doesn’t work?” asked Col. Sullivan.
“Rather than trying to revive these charges, it seems time for the United States to take a new look and find a new way to deal with these cases,” he said.
Sullivan suggested using the US federal court system as an alternative. The only Guantanamo trial held so far has been that of 31-year-old Australian Taleban David Hicks, who was jailed for nine months in March after reaching a plea bargain with the chief of the US commissions. He has now been moved to a prison in Adelaide, Australia.
