Tribunals are dealt another legal setback

Times Staff Writers

Military judges threw out war-crimes cases Monday against the only detainees here who have been indicted, in rulings that suggest the hastily reassembled military tribunals have no jurisdiction over any of Guantanamo’s 380 prisoners.

In separate hearings, an Army colonel and a Navy captain granted motions to dismiss the cases because the 2006 Military Commissions Act that Congress passed last year gave the tribunals jurisdiction only over “unlawful alien enemy combatants.”

For the record:

12:00 a.m. June 7, 2007 For The Record
Los Angeles Times Thursday June 07, 2007 Home Edition Main News Part A Page 2 National Desk 2 inches; 69 words Type of Material: Correction
Guantanamo cases: An article in Tuesday’s Section A about dismissal rulings in two Guantanamo cases misquoted John D. Hutson, a former Navy lawyer and now dean of Franklin Pierce Law Center in New Hampshire. In assessing the significance of detainees who have faced trial at Guantanamo Bay, Hutson said, “We aren’t exactly talking about Himmler and Goering, so far,” not “Hitler and Goering,” as it appeared in the article.

Salim Ahmed Hamdan, a former driver and bodyguard for Osama bin Laden, and Omar Khadr, a Canadian who was 15 when arrested five years ago in a firefight with U.S. forces in Afghanistan, were designated “enemy combatants” during 2004 Combatant Status Review Tribunals.

Reconciling the different labels is sure to slow prosecution of these and other Guantanamo detainees. All 380 detainees received the same label during their initial status reviews.


It was the second time in less than a year that the Bush administration’s process for bringing terror suspects to justice has failed. An earlier version of the commissions -- created by Bush in November 2001 without congressional participation -- was struck down as unconstitutional by the U.S. Supreme Court last June 29.

Army Maj. Beth Kubala, the legal advisor and spokeswoman for the tribunals, said, “Based on today’s rulings, the public should make no assumptions about the future of the military commissions.”

The Geneva Convention protects the rights of “lawful combatants,” who are usually members of national armed forces fighting with another country’s soldiers. Captured lawful combatants are supposed to be designated prisoners of war and held in communal conditions.

But when the Bush administration devised the tribunals, it eliminated that designation to deprive the war-on-terror suspects of POW rights and living conditions. That left the three-officer status review boards with the choices of “enemy combatant” or “no longer an enemy combatant.”

In the second of the two rulings, Navy Capt. Keith Allred suggested that Bush’s blanket branding of all Al Qaeda members as illegally engaged in hostilities against U.S. forces was illegitimate because it failed to examine whether each individual had committed war crimes.

“He’s either entitled to the designations as a prisoner of war or as an unlawful alien enemy combatant,” Allred said of Hamdan.

Allred also pointed out that the status reviews were established to determine whether a detainee was being properly held here, not to determine whether he was subject to trial by military commission.

Navy Lt. Cmdr. Charles Swift, Hamdan’s defense attorney, said the Military Commissions Act “demonstrates once again that if you put a statute together in three weeks and rush it through ... you end up with a process that doesn’t work.”

Donald J. Guter, a retired Navy rear admiral and Duquesne University Law School dean, agreed.

“There hasn’t been anything we’ve done down there that has followed form or practice,” Guter said. “It has been a lot of ad hoc and reverse engineering.”

It was Swift who took Hamdan’s challenge of his detention to the Supreme Court last year, leading to the high court’s decision that Bush had overstepped his wartime powers when he unilaterally created the commissions two months after the Sept. 11, 2001, terror attacks.

Marine Col. Dwight Sullivan, head of the war crimes tribunal defense team, said that Congress should take the opportunity to force the government to cease circumventing legitimate U.S. courts in its effort to prosecute Guantanamo prisoners.

“The military commissions are a model that has repeatedly shown itself incapable of rendering justice,” said Sullivan. He added that after the rulings, “if the United States government is wise, this would be the fatal blow to military commissions.”

Monday’s rulings could provide an opportunity for Defense Secretary Robert M. Gates to again propose moving trials to the U.S. mainland. Gates, who told Congress earlier this year that he favors shutting the prison, was traveling in Kyrgyzstan on Monday.

In response to reporters’ questions, Gates said he would have to review the decisions before making a substantive comment. “This is the reason we have a judicial process in all this,” he said.

Some military observers doubted that the rulings would lead to the end of Guantanamo tribunals. Gates lost his first battle to close Guantanamo after Vice President Dick Cheney and other administration officials insisted that the prison remain open as an alternative to bringing the prisoners they have described as the world’s most dangerous men to U.S. communities for trial in federal court.

Still, the rulings by the commissions’ own judges seemed likely to compound criticism at home and abroad that the denial of Geneva Convention protections conflicts with American values and commitment to justice.

The dismissed cases have no real effect on the prisoners’ freedom: The administration has said that even those never charged with specific crimes will be held for the duration of the war on terrorism, regardless of judicial procedures created to try them.

Prosecutors in both cases asked the judges for 72 hours to decide whether to appeal their rulings. But the panel created by the Military Commission Act to review decisions hasn’t yet been created -- a point many lawyers noted as further evidence that the commissions are a poor substitute for established judicial forums.

Defense Department officials were discussing whether to hold another round of the status review tribunals for detainees they intend to try, officials in Washington said Monday.

Not all detainees would necessarily have to face the review panels. Many are likely to be transferred once arrangements can be made with other countries to receive and detain them. The commissions’ chief prosecutor, Air Force Col. Morris Davis, has said he envisions charging about 75 of the prisoners, with the rest to be held “for the duration of the war on terror.”

The Pentagon could rewrite the rules for the status reviews to elicit determinations on the lawfulness of each prisoner’s alleged combat activities. But rewriting the rules would take months, as would new status hearings, said retired Army Col. Fran Gilligan, a legal scholar now with the commissions’ prosecution office.

The newly reconstituted commissions had taken up only one case before Monday, in which Australian David Hicks pleaded guilty to drastically reduced charges in March in exchange for the right to serve the last few months of his sentence in his native Adelaide.

Although Hicks’ plea deal was widely denounced as a sham intended to answer mounting demands from the Australian government for his return, the Bush administration cited it as proof that the new system worked.

Army Col. Peter Brownback, the military judge in Khadr’s case, brought the motion to dismiss the charges against Khadr, who fired his legal team last week. Khadr was accused of throwing a grenade that killed an Army special forces medic in July 2002.

Hamdan was charged with conspiracy and supporting terrorism for helping bin Laden and other Al Qaeda figures.

The charges against both prisoners were dismissed “without prejudice,” meaning the government can bring a new case if it can classify the men as unlawful combatants.

Brownback did say many Guantanamo prisoners merited the “unlawful” designation because most were foreigners fighting for irregular forces like Al Qaeda and Afghanistan’s Taliban, not uniformed members of a national army.

Khadr was only 15 when he was captured by U.S. forces at an Al Qaeda compound in Afghanistan. He entered the courtroom in the tan prison garb that designates a compliant detainee according to military-detention regulations, instead of the civilian clothing the court advises defendants to wear to avoid appearing like a prisoner before the commissioners -- who were not present Monday.

His beard was scruffy and his hair matted, whereas he had appeared neatly barbered in khakis and a sport shirt during his last commission appearance 16 months ago.

Hamdan hadn’t been in court for nearly three years because a federal judge had issued a stay in his and two other cases. A slight man who smiled with his attorneys, he clearly had difficulty understanding the Arabic translation or much of the proceedings.

Human-rights lawyers hailed the twin rulings as an admission that the commissions are “fatally flawed” and should be abandoned in favor of military courts-martial or trials in U.S. federal courts.

“Allred questioned the president’s ability to designate an entire class of people as enemy combatants without any inquiry into the actual facts,” said Jennifer Daskal of Human Rights Watch.

“Today’s ruling is the most significant setback since the U.S. Supreme Court threw out the original military commissions,” said Jumana Musa of Amnesty International. “It also signals that these commissions need to be scrapped and the detention facility at Guantanamo Bay must be closed now.”

Navy Cmdr. Jeffrey D. Gordon, a Pentagon spokesman, said Monday that the Pentagon would review the rulings but believes the new law and older tribunals’ status are legally compatible.

John D. Hutson, a former top Navy judge advocate general and a critic of the tribunal system, said the commissions are unlikely ever to be known for prosecutorial success.

“Look at the cases we have had. So far, we’ve had a kangaroo-skinner and a chauffeur,” Hutson said, referring to Hicks and Hamdan. “We aren’t exactly talking about Hitler and Goering, so far.”

But he said he doubted that Monday’s rulings would be the fatal blow.

Times staff writer Peter Spiegel contributed to this report from Kyrgyzstan.