US military court dismisses charges against Guantanamo inmate for lack of jurisdiction

From Financial Times.


The Bush administration suffered a setback in its effort to try detainees at Guantánamo Bay on Monday when a military judge threw out all charges against the first prisoner to come before the newly constituted military court.

A military judge dismissed all charges against Omar Khadr, a 20-year-old Canadian who has been held at Guantánamo for five years, because the court did not have jurisdiction to try "enemy combatants".

Congress in 2006 approved new military commissions to try prisoners after the Supreme Court ruled that the initial military tribunals created by the Bush administration breached US law and the Geneva Conventions. But Col Peter Brownback, the military judge, yesterday ruled that Congress only permitted the trial of "unlawful enemy combatants".

The ruling is a significant setback for the administration, which has seen its efforts to try prisoners at Guantánamo Bay blocked at most stages of the process. The court on Tuesday was also hearing the case of Salim Ahmed Hamdan, a former driver for Osama bin Laden, whose Supreme Court challenge resulted in the original commissions being struck down.

Human rights groups welcomed the decision, which they said would complicate the Bush administration's plans to try about 80 of the roughly 380 detainees at Guantanamo.

"If the US has evidence that Khadr or any other detainee committed war crimes, it should prosecute them either in the tried and true military justice system or, where appropriate, the criminal justice system,"said Priti Patel, an attorney at Human Rights First, who was at Guantánamo observing the commissions

Robert Gates, the US defence secretary, is understood to want to close Guantánamo, and bring any prisoners for trial to the US, but so far he has failed to persuade other parts of the administration.

Hina Shamsi, a senior lawyer at Human Rights First, said the administration could appeal against the decision within 72-hours, but pointed out that an appeals court did not exist, and said any attempt to convene an "ad hoc" court "underscored how flawed the system is".

The Pentagon said the ruling was based on a technicality. "We believe that Congress intended to grant jurisdiction . . . to individuals, like Mr Khadr, who are being held as enemy combatants under the existing Combatant Status Review Tribunal procedure," said JD Gordon, a Pentagon spokesman.