GUANTANAMO BAY NAVY BASE, Cuba—A pair of military judges on Monday blocked the Bush administration's latest plan to try detainees here for war crimes, dismissing charges against two suspects after finding that the Pentagon hadn't followed congressional mandates in bringing the cases.
At issue was the failure of the Pentagon to find during earlier proceedings that Omar Khadr, 20, whom U.S. officials had charged with murder in the death of a U.S. Special Forces medic, and Salim Hamdan, 36, a driver for Osama bin Laden, were "unlawful enemy combatants." Instead, military panels had declared that the men were simply "enemy combatants."
But in separate decisions, Army Col. Peter Brownback and Navy Capt. Keith Allred said that that designation was insufficient under the Military Commissions Act passed last year.
Brownback said the act specifically limits trials to detainees who'd be tagged as "unlawful enemy combatants" and bars trials of "lawful enemy combatants." Without a more specific designation, a military commission has no authority to act, he found.
"A person has a right to be tried only by a court that has jurisdiction over him," Brownback said.
Allred used slightly different logic to reach the same conclusion. He said Hamdan "is either entitled to the designation as a prisoner-of-war or he is an alien unlawful enemy combatant. Or he is entitled to another status."
The Pentagon's current Combatant Status Review Tribunals doesn't distinguish among the three, he said.
The decisions immediately set off calls for the Bush administration to forgo its efforts to set up a separate judicial system to try Guantanamo detainees for alleged war crimes.
"This decision demonstrates the egregious flaws of the Military Commissions Act and makes the point once again that Congress must act immediately to change this law," said Sen. Christopher Dodd, D-Conn. "The current system of prosecuting enemy combatants is not only inefficient and ineffective, it is also hurting America's moral standing in the world and corroding the foundation of freedom upon which our nation was built."
Chief defense counsel Marine Corps. Col. Dwight Sullivan noted that each captive currently held at Guantanamo is classified as an "enemy combatant," not an "unlawful enemy combatant."
Sullivan, who oversees the defense of all military commission cases, declared the war court "a complete failure" and urged the Pentagon to end its efforts to prosecute Guantanamo detainees under the Military Commissions Act.
"The system right now should just stop," said Sullivan. "The commission is an experiment that failed and we don't need any more evidence that it is a failure."
The chief prosecutor, Air Force Col. Morris Davis, a frequent visitor to the Guantanamo media center, chose not to comment on Monday night.
In Washington, Navy Cmdr. Jeffrey Gordon, a Pentagon spokesman, said the Defense Department planned to appeal. But Brownback, a retired military judge, scoffed at that idea when prosecutors raised it on Monday, saying there was no court to which the government could appeal.
Congress authorized the Defense Department to establish a Court of Military Commission Review to handle appeals, but the court has yet to be set up. Defense Department officials said Monday they didn't know when appointments to the court would be made.
Muneer Ahmed, an American University law professor who represented Khadr until last week, said quick appointments to the review court would only further damage the commissions' credibility.
"I think that's going to do more damage than help," he said.
Monday's rulings—Brownback's decision in the Khadr case came first, followed later by Allred's decision in the Hamdan case—were the latest in a long line of legal rulings that have blocked Bush administration efforts to try Guantanamo detainees for alleged war crimes.
Since President Bush declared in 2002 that the Geneva Conventions covering prisoners of war wouldn't apply to Guantanamo detainees, debate has raged over the administration's efforts to create a new kind of military war court—the first U.S. war crimes tribunals since World War II.
Military defense attorneys objected to the proposals, and international law and human rights groups criticized the effort as extrajudicial, extra-territorial justice. Twice, the Supreme Court handed the detainees specific victories. In its latest ruling last year, the court held that plans to try the detainees were unconstitutional because Congress hadn't authorized the trials. The Military Commissions Act was intended to overcome that objection.
But Brownback, who served as chief presiding officer at the first attempt to stage commissions, found that the rules Congress established and those that the Pentagon had been following before the legislation was passed were incompatible.
Brownback declared the dismissal "without prejudice," meaning the Defense Department could seek in the future to recharge the Toronto-born Khadr.
Allred said the problem with the Hamdan case could be remedied by holding a new hearing to determine his status.
Even so, there was a special irony to Allred's ruling. Hamdan, accused of being bin Laden's driver, was the plaintiff who successfully challenged an earlier Pentagon trial scheme before the Supreme Court. It was that case that led to the passage of the Military Commissions Act.
Hamdan, 36, grinned as he listened through Arabic translation as his lawyer accused the Bush administration of "essentially winging it on the jurisdictional basis for this court's proceedings."
Khadr's case had long been controversial because he was only 15 when he was captured in Afghanistan. U.S. prosecutors accused him of murdering a U.S. Special Forces medic during a firefight in July 2002, but some legal experts argued that as a juvenile he should have been treated differently.
But the dispute over technical language was largely unexpected.
The rulings were also likely to force new status hearings for 14 so-called "high-value detainees" transferred here from CIA custody last year, among them suspected Sept. 11 mastermind Khalid Sheikh Mohammed.
At each of those hearings, the presiding officer said the purpose was to determine if a detainee was an "enemy combatant." There was no mention about the status of an "unlawful enemy combatant."
"If the U.S. government were at all wise, this would be a fatal blow to the military commissions," said Jennifer Daskal, an attorney and observer from Human Rights Watch. "In five years, the military commissions have convicted one person by plea agreement."
In that deal, in late March, Australian captive David Hicks, 31, agreed to plead guilty to a single charge of providing material support for terrorism in exchange for a nine-month sentence. He returned last month to Australia to serve his sentence.
Said Amnesty International observer Jumana Musa: "At this point, detainees have been more successful committing suicide in Guantanamo than the government has been successful in getting detainees to trial."
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(Rosenberg reports for The Miami Herald. Warren P. Strobel in Washington contributed to this report.)