UPDATE Friday June 8, 2007, afternoon:
A Pentagon spokesman told reporters on Friday that the government is asking the two military judges at Guantanamo to reconsider their rulings dismissing the war crimes charges.

NOTE: The Supreme Court on April 30 refused to hear a challenge to the detention and war crimes prosecution of Omar Ahmed Khadr, and the D.C. Circuit Court on May 31 ruled that it had no jurisdiction to stop Khadr’s war crimes trial from opening on Monday of this week. Khadr was to be offered a chance on Monday to answer the plea. Another detainee, Salim Ahmed Hamdan of Yemen, also was to answer charges on Monday; his appeal, too, was denied by the Supreme Court April 30. This post details what occurred in Guantanamo.

UPDATE 9:30 p.m. A second military judge at Guantanamo, Navy Capt. Keith Allred, later Monday made the same decision as the one described in this post. The new dismissal came in the case of Salim Ahmed Hamdan, and for the same reasons, according to news reports. The Hamdan order can be found here

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A military judge in Guantanamo Bay, Cuba, on Monday dismissed war crimes charges against a 20-year-old Canadian being held in the military prison camp there, finding that the “military commission” that was to try him had no jurisdiction. The defect, however, can be cured, the judge indicated in a three-page decision in the case of Omar Ahmed Khadr. The text of the ruling can be found here (Note at 10:30 PM: Document changed to PDF format).

Although the military designated Khadr as an “enemy combatant” last Sept. 7, the actual charges against him first issued on Nov. 7 and made formal on April 24 said he was to be tried as an “alien unlawful enemy combatant.” Military Judge Peter E. Brownback III, an Army colonel, concluded on Monday at the outset of the planned trial at Guantanamo that there is a difference between the two labels.

Under the Military Commissions Act passed by Congress last Fall, Col. Brownback noted, such a commission has authority only to try an “alien unlawful enemy combatant.” It expressly does not have jurisdiction, he said, to try a “lawful enemy combatant.” Examining the charge sheet the military issued against Khadr, the judge found “nothing…to establish or support jurisdiction over Mr. Khadr, except for a bare allegation [of unlawful enemy combatant] in the wording of the Specifications of the Charges.” In the charge sheet, Khadr is referred to as “an alien unlawful enemy combatant,” and its jurisdictional claim asserts that he was found to be “an unlawful enemy combatant” by a military review panel on Sept. 7, 2004.

Because only Khadr and another Guantanamo prisoner, Yemeni national Salim Ahmed Hamdan, face war crimes charges before “military commissions,” it is not clear how wide an impact the Brownback decision will be. It was understood, however, that the Pentagon had planned to appeal the decision to either a higher military or civilian court. However, the military appeals court that Congress specified for reviewing commission proceedings does not yet exist. The Pentagon has indicated that it may wish to try many more individuals at Guantanamo, and the new decision could affect those plans.

It also was not clear what, if any, impact the ruling might have on other Guantanamo captives who do not face war crimes charges, but do face prolonged detention at the camp in Cuba. The military has conducted at least 558 proceedings on “combatant status” of Guantanamo prisoners, and it appears that most of those simply concluded that the individual involved was an “enemy combatant.”

The judge stressed that he was “not ruling that no facts could be properly established concerning Mr. Khadr which might fit the definition of an unlawful enemy combatant” in the law passed by Congress. It is not up to the commission, he concluded, to make the decision that he meets that definition in order to give itself jurisdiction to try Khadr.

“A person had a right to be tried only by a court which he knows has jurisdiction over him. If the military commission were to make the determination, a person could be facing trial for months, without knowing if the court, in fact and in law, has jurisdiction,” the judge wrote.

The ruling appeared to clear the way for the Pentagon to put Khadr back before a “Combatant Status Review Tribunal,” an in-house military panel that is not set up as a court, to consider whether “a proper determination” of his status can be made. If Khadr then again was charged before a commission, he would be free, the judge declared, to “attack those facts” in the charges that “might combine to show him to be an unlawful enemy combatant.”

Col. Brownback said he was not ruling that the Pentagon had to file a new set of charges against Khadr. That issue was not before him, but he added that that approadch “would seem to be the more prudent avenue to take.” The ruling concluded: “The charges are dismissed without prejudice.”.

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