GITMO TRIBUNAL THROWS OUT PREMIERE CASES

by Eli Clifton

(IPS) WASHINGTON -- The military tribunal system designed to prosecute terrorist suspects detained at Guantanamo Bay hit a major snag when a U.S. military judge dismissed charges in cases against a man accused of being Osama Bin Laden's driver and another defendant who was 15 years old at the time he was detained by U.S. forces in Afghanistan.

The tribunals, which have yet to complete a single trial, were setback when Army Col. Peter Brownback II and Navy Capt. Keith Allred both held that the prosecution had failed to show that Omar Khadr, the 15-year-old, and Salim Ahmed Hamdan, accused of being Osama Bin Laden's driver, were enemy combatants and therefore the military commission did not have the jurisdiction to try them.

In both cases the grounds for dismissal hinged on the Military Commissions Act of 2006 (MCA) which gives the military commissions jurisdiction over individuals who have been found by a Combatant Status Review Tribunal (CSRT) to be "unlawful enemy combatants."

The CSRTs, however, which were formed by the Bush administration in 2004, only determined if a detainee was an "enemy combatant" -- a different definition from the MCA's language.

In both cases the prosecution tried to argue that the distinction between "enemy combatants" and "unlawful enemy combatants" was irrelevant based on Bush's 2002 memo in which he stated that Taliban and al Qaeda detainees did not qualify as prisoners of war under the Geneva Conventions, thereby all Taliban and al-Qaeda detainees were unlawful combatants.

The prosecution suggested that the combination of the 2002 memo and the CSRT finding Khadr and Hamdan to be "enemy combatants" should make them "unlawful enemy combatants" for the purposes of prosecuting them under the MCA.

Capt. Allred rejected the notion that the president could declare an entire group of people "unlawful enemy combatants" as opposed to on a case-by-case basis, thereby refuting the prosecution's argument.

"Indeed, during the argument, Capt. Allred asked the prosecutor (and I am paraphrasing) if he wasn't troubled by the idea that the president could declare an entire group of people to be unlawful combatants without any individual, factual finding," wrote Priti Patel, a lawyer at Human Rights First and observer at the hearings in Guantanamo Bay.

Human rights advocates have been quick to point out that none of the three cases brought before the tribunals have come to trial.

In March, David Hicks, an Australian defendant, negotiated a plea bargain which required him to serve only nine months of prison time back in Australia, and charges were dismissed against both detainees on Monday.

"Five years ago we were told the administration had created an entirely different justice system since ours was inadequate to prosecute the worst of the worst," American Civil Liberties Union attorney and Guantanamo observer Ben Wizner told IPS. "The outcome is the first (defendant) gets a nine-month sentence and the second was 15 at the time of his arrest."

"My view is that the administration at this point, if it has any sense, will take the two rulings yesterday as a fatal blow to the commissions," Jen Daskal, U.S. Program Advocacy Director at Human Rights Watch, told IPS from Guantanamo Bay where she witnessed the hearings Monday. "It can appeal these rulings but it will be appealing to a review court that has not yet been created."

Even the fact that Hamdan and Khadr's charges were dismissed does not mean they will be released and it does not preclude them from being reclassified as "unlawful enemy combatants" and tried again for the same charges.

No one held at Guantanamo is currently classified as an "unlawful enemy combatant" so a mass reclassification would be required to make any detainees eligible for prosecution.

In April, the U.S. Supreme Court denied civil judicial review to the 300-plus prisoners still held at the controversial U.S. military base until their cases have gone through the process set up by the 2005 Detainee Treatment Act, which allows limited civil court appeals of decisions reached by military review panels.

However, the high court has twice affirmed the detainees' right to habeas corpus review, first in a landmark case known as Rasul v. Bush in 2004, and later in Hamdan v. Rumsfeld in 2006.

Of the latest decision, Wizner said that, "In purely practical terms this means that the administration must bring detainees in front of two sham tribunals instead of one. The administration can reconvene the CSRT and tell the officers to classify the detainees as unlawful enemy combatants."

"The saddest part about all of this is that Khadr's day to day situation doesn't change. He's spent a quarter of his life in U.S. custody," said Daskal.