Court hands U.S. stunning defeat

The Bush Administration, as expected, disagreed Tuesday with military judges who threw out charges against two Guantanamo Bay detainees in a stunning reversal on the legal front of its "war on terror."

Monday's surprise rulings on Toronto native Omar Ahmed Khadr, 20, and Osama bin Laden's ex-driver Salim Ahmed Hamdan threatened to torpedo the government's pursuit of Guantanamo Bay terror suspects through new-look military tribunals.

In both cases, the judges found that they had no jurisdiction to proceed with military commission trials, as neither Khadr nor Hamdan had been classified as an "unlawful enemy combatant" as required by a recent US law.

"We don't agree with the ruling," White House spokesman Tony Fratto told reporters in Prague where President George W. Bush kicked off a European tour that will take him to the Group of Eight summit in Germany on Wednesday.

Fratto maintained that the tribunals remain appropriate for dealing with foreign terrorism suspects, saying "The system is taking great care to be within the letter of the law."

Khadr was just 15 when he was captured in Afghanistan, accused of killing a US army medic in a hand-grenade attack.

Sporting a straggly beard and dressed in olive-green prison garb and flip-flops, he stared on impassively as Colonel Peter Brownback issued his potentially far-reaching ruling.

"It was very surprising," the defendant's sister, Zaynab Khadr, told AFP in Canada. "But we were very happy to hear the news. I hope he will be released soon."

However, lawyers said that both Khadr and Hamdan will remain in legal limbo at this base in southeast Cuba along with nearly 400 other detainees rounded up or handed over to US forces since the September 11 attacks of 2001.

It was the second major victory for Hamdan, an admitted driver and bodyguard for the Al-Qaeda mastermind who was born in Yemen in 1970, after he defeated the government's old tribunal process in a Supreme Court case a year ago.

Major Beth Kubala, spokeswoman for Guantanamo Bay's Office of Military Commissions (OMC), said it would be "speculative" to comment on the rulings' implications for the government.

But she told reporters: "OMC will continue to operate in a manner that's fair, transparent, open and legitimate.

"If nothing else, today's rulings highlight that the judges operate independently," Kubala added.

Government prosecutors were granted a 72-hour delay to the Khadr and Hamdan rulings while they consider their options for appeal.

However, the appeals court envisioned in the Military Commissions Act (MCA), which was hurriedly passed by Congress last September following the Supreme Court ruling on Hamdan, has yet to be created.

"If the administration has any sense at all, this will be the death knell for the commissions," Jennifer Daskal of Human Rights Watch said, calling for terrorist suspects to be tried in US civilian courts.

Murder and other charges levied against Khadr were dismissed by Brownback. Late in the evening, Navy Captain Keith Allred threw out charges of conspiracy and material support for terrorism against Hamdan.

"Mr Hamdan is both relieved (and) still hopes he'll get a fair trial," said Hamdan's defense lawyer, Lieutenant Commander Charles Swift.

Swift said the military judges had "reaffirmed that the president is not a tribunal in and of himself."

"It was a victory for the rule of law and the law of war," he said, adding: "It shows what happens when you try to throw legislation together… in a rush."

So-called combatant status review tribunals (CSRTs) have conferred the description of "enemy combatant" on hundreds of suspects held without charge at Guantanamo.

But in a pivotal point for the judges at Monday's tribunals, none of the suspects still at the camp has been labeled "unlawful" by a CSRT, so legally they could be viewed as fighting for a legitimate state.

One time-consuming option for the government would be to convene a new round of CSRT tribunals for the Guantanamo detainees, to officially label them "unlawful" and so press ahead with prosecutions.

The only Guantanamo trial held so far has been that of 31-year-old "Australian Taliban" David Hicks, who was jailed for nine months in March after reaching a plea bargain the chief of the US commissions. He is now imprisoned in Adelaide.


  1. Helen Rainier

    Bravo and a big thank you to the military’s JAG attornies for standing up for the rule of law — whether it be civilian or military.

    It’s a small glimmer of hope that can reassure those of us who are fed up with the Bushies refusal to uphold and defend the Constitution of the United States, which they took an oath to do.

    If memory serves correctly, it has been military lawyers who have fought tooth and nail to ensure the detainees at Gitmo are subjected to equitable and impartial jurisprudence.

  2. gene

    I can see Bush now………butbutbutbut….”I’m the president” while beating on his chest. Only in name you idiot. Only your butt sucking lovers listen to you and probably are laughing at you behind your cowardly back. Wish this worthless, spineless garbage we call a congress would do something but I don’t believe in fairy tales so forget that.

  3. Steve Horn

    Geeze … don’t tell me that damn Constitution thing got in the way of the administrations attempt to exercise totalitarian control over the world?

    Don’t sweat it folks – “Cowboy George” and his wranglers will figure a way around this temporary inconvenience.


  4. bjiller

    It sure looks like a victory for law and order at first glance. Certainly, the military judges are to be commended for holding the prosecutors to the letter of the law. Were that the case everywhere.

    However, this may have an unintended result. The Bush administration wants to hold these people forever without a trial, and when they finally get a trial, every one of these people will be claiming that any evidence they gave during interrogations cannot be used because they were coerced by torture . . . errrr, I mean by “alternative interrogation techniques” or “coercive interrogation” or “harsh interrogation methods.” Many of them were the subject of illegal “renditions” to other countries for torture, so there will be lots of press stories about that illegal program. Some will claim, truthfully, that they were innocent bystanders turned in only for the bounties offered by the CIA. See

    So, these trials will show that at least a few innocent people were tortured, and were held for years without a trial. Such trials, whenever they finally occur, will be a continuing reminder of how our nation lost its way on torture, or, in Dick Cheney’s words, went to “the Dark Side.” That might give pause even to the most rabid pro-war Bush-trusting GOP supporters.

    So, the end result of this tribunal’s decision is that the administration gets what it wants — no trials — at least for a while. It gets to continue to hold these people while CSRTs are reconstituted to reclassify these people as “unlawful enemy combatants” as opposed to “enemy combatants.” How long will that take, maybe another year or two . . . until after the 2008 election, maybe?

    So, the pro-torture,”all Muslims are evil” “double the size of Guantanamo” Republicans must be thanking this tribunal for its decision because a greater proportion of the American people will remain more ignorant of the horrors committed in their name until after the 2008 election.

    Then, should the Democrats win the Whitehouse in 2008, the GOP can blast them for being “soft on terror” and “letting the terrorists go” after the terrorists finally get their trials and win because they were tortured in violation of the Geneva Conventions and federal law. And they will get a trial, and even the most “conservative” Supreme Court is not going to allow evidence coerced by torture to be used.

    So, this decision may work out quite well for the GOP, at least through 2008.

  5. Steve Horn

    Interesting that a nation founded on freedom is taking such delight in denying others their freedom.

    We’ve vilified Islamics to the point that many Americans actually buy into the myth of the Koran supporting the killing of those who do not profess faith in Islam. In fact I’d bet that many professed Christians would be shocked to see the positive light in which both Jesus and Mary are discussed within the Koran.

    Of course, being average Americans who are unwilling to do any research for themselves, they’ve not taken the time to actually READ the Koran, which makes sense as it seems most Christians have never read the Bible either ….

  6. geyser

    My faith in the US Constitution, the Rule of Law and some Judges has been restored.
    Although this Judge has freed on paper two of the detainees, it doesn’t mean they will be enjoying a cold one, any time soon.
    First, George will be sure to have the name of the Judge, to be dealt with at a future date. Next, he will have one of his flunky Congressmen write a law to make sure it won’t happen again and some how use it against the two recent captives, that almost got to see the light of day.
    For just a moment, I was back in a Country to be proud of.

    Taking One Day at a Time