Military judge refuses to revive war crimes case
on Jun 29, 2007 at 4:50 pm
A military judge at Guantanamo Bay, Cuba, refused on Friday to reconsider an early June ruling that a military commission does not have the authority to hold a war crimes trial of a young Canadian detainee, Omar Ahmed Khadr. Turning aside a plea by military prosecutors, Judge Peter E. Brownback III, an Army colonel, said again that the military panel that reviewed Khadr’s status had not found him to be an unlawful enemy combatant, so a commission trial cannot be held and war crimes charges had to be dismissed. This new ruling set the stage for a Pentagon appeal — if some uncertainty over the availability of a proper appeals court is sorted out.
Brownback’s order was the second significant setback of the day for the Bush Administration’s handling of detainee affairs. It followed the Supreme Court’s agreement, over Administration opposition, to hear two appeals over detainees’ legal rights that the Justices had declined to hear in April. (A post discussing this other development can be found here.)
The judge’s earlier order dismissing charges against Khadr was the second of two such rulings by a judge at Guantanamo on the same day. In a separate proceeding, another judge dismissed charges against Salim Ahmed Hamdan, for the same reasons. Prosecutors had also asked that judge to reconsider, but there was no word from that judge on Friday.
Judge Brownback, in a 10-page order in the Khadr case, found here, said the plea for reconsideration to did not offer any change in the facts or law since his June 4 order finding no jurisdiction over Khadr’s case. But, the order went on, because of the prosecution request, he was clarifying the rationale for his earlier decision. While refusing to reconsider, the judge went ahead to dispose of each of the prosecutors’ arguments against the dismissal “in the interest of conserving judicial and other resources” should the case be appealed either to the new Court of Military Commission Review or the D.C. Circuit Court.
The order implicitly raises questions about whether the order dismissing the charges on June 4, or Friday’s refusal to reopen that order, can be appealed. Brownback suggested it was up to “an appellate court” to determine whether an appeal can be pursued. But there is another layer of uncertainty that the judge did not mention: the Court of Military Commission Review has yet to be formally established, and federal law requires the government to file a notice of a pre-trial appeal within five days after the order being challenged. The appellate route to the D.C. Circuit is also not free from doubt. The Military Commissions Act gives the D.C. Circuit the authority to review final decisions of the military appellate court, and some pre-trial decisions by that court. Unless the military review court exists, the D.C. Circuit might not be open to an appeal.
The Brownback order essentially contains two parts. In the first, he found no basis for reconsidering the June 4 dismissal, since nothing new was presented to him, as he saw it. But the bulk of the order is a point-by-point rejection of the prosecutors’ arguments challenging the merits of the June 4 decision.
The core of his two rulings is that the MCA allows commissions to try war crimes charges only when they are made against an “unlawful enemy combatant,” as determined by a military Combatant Status Review Tribunal. Brownback found that Omar Khadr had been found by a CSRT to be only an “enemy combatant,” without the designation of “unlawful.” He reiterated that conclusion in fuller form Friday.
(A post discussing the prosecutors’ plea for reconsideration can be found here.)
