Charges thrown out against Gitmo pair

WITH one word — “unlawful” — the only two war-crimes trials against Guantanamo detainees fell apart in a single day, marking a stunning setback to Washington’s attempts to try dozens of detainees in their military courts.

Two military judges dismissed charges Monday against a Guantanamo detainee accused of chauffeuring Osama bin Laden and another who allegedly killed a US soldier in Afghanistan.

Salim Ahmed Hamdan of Yemen and Omar Khadr, a Canadian, who was 15 years old when he was arrested on an Afghan battlefield, were the only two of the roughly 380 prisoners at Guantanamo charged with crimes under a reconstituted military trial system.

The White House yesterday said it disagreed with the rulings, and that the US defence department was considering an appeal. Monday’s rulings stand to complicate efforts by the United States to try other suspected al-Qaida and Taliban figures in military courts.

Defence lawyers and legal experts blamed the rush by Congress and President Bush last year to restore the war-crimes trials after the US Supreme Court threw out the previous system, declaring it unconstitutional.

In a remarkable coincidence, it was Ahmed Hamdan’s lawsuit that wound up in the Supreme Court.

In both of Monday’s cases, the judges ruled that the new legislation says only “unlawful enemy combatants” can be tried by the military courts, known as commissions.

But Omar Khadr and Mr Hamdan had previously been identified by military panels only as enemy combatants, lacking the critical “unlawful” designation.

“The fundamental problem is that the law was not carefully written,” said Madeline Morris, a Duke University law professor.

“It was rushed through in a flurry of political pressure from the White House ... and it is quite riddled with internal contradictions and anomalies.”

Prosecuting attorneys in both cases indicated they would appeal the dismissals. But the court designated to hear the appeals — known as the court of military commissions review — doesn’t even exist yet, said Marine Colonel Dwight Sullivan, chief of military defence lawyers at Guantanamo Bay.

Army Major Beth Kubala, spokeswoman for the Office of Military Commissions which organises the trials, said “the public should make no assumption about the future of military commissions”.

The distinction between classifications of enemy combatants is important because if they were “lawful,” they would be entitled to prisoner of war status under the Geneva Conventions.

Col Sullivan said the dismissal of Khadr’s case could spell the end of the war-crimes trial system.

Col Sullivan said reclassifying detainees as “unlawful” would require a time-consuming overhaul of the combatant status review tribunals that first classified them as enemy combatants.