Monday, June 4, 2007

Gitmo judge tosses Khadr case

Paraphrasing Justice John Paul Stevens' opinion for the Court in Hamdan v. Rumsfeld as follows -- "'A person has a right to be tried only by a court that has jurisdiction over him.'" -- a military judge just threw out the U.S. government's case against alleged child soldier Omar Khadr. The 3-page order of Judge Peter E. Brownback III, an Army colonel, has been posted here by the National Institute of Military Justice. Decision turned on the fact that § 948d of the Military Commissions Act passed post-Hamdan gives the commission jurisdiction only over an "alien unlawful enemy combatant." A Combatant Status Review Tribunal convened in 2004, 2 years before enactment of the MCA, found that Khadr was an "enemy combatant" but made no distinction as to lawfulness or unlawfulness of that status. Brownback wrote (¶ 11):
The military judge is not ruling that no facts could be properly established concerning Mr. Khadr which might fit the definition of an unlawful enemy combatant .... The military judge is ruling that the military commission is not the proper authority, under the provisions of the MCA, to determine that Mr. Khadr is an unlawful enemy combatant in order to establish initial jurisdiction for this commission to try Mr. Khadr.
Although Brownback left open the possibility of refiling of charges following a proper determination, Marine Corps Col. Dwight Sullivan, Chief Defense Counsel at Gitmo, said:
'The system right now should just stop. The commission is an experiment that failed, and we don't need any more evidence that it is a failure.'

1 comment:

Diane Marie Amann said...

Later in the day, a second military judge, Keith J. Allred, a Navy captain, cited similar grounds in dismissing without prejudice the case against Salim Ahmed Hamdan. The order is at http://www.nimj.com/documents/Hamdan%20Order.pdf.