The White House is being urged to re-examine the way it tries war-crimes suspects at Guantanamo Bay after American military judges dropped terrorism charges against two prisoners.
On Monday, the U.S. judges abruptly dropped all charges against two men being held at the prison in Cuba — Omar Khadr, a Canadian accused of killing a U.S. soldier, and Yemen's Salmi Ahmed Hamdan, who was accused of being al-Qaeda leader Osama bin Laden's chauffeur.
In the two separate cases, the judges based their decisions on a technicality that throws the military commission trials process into doubt.
Khadr, a 20-year-old from the Toronto area who had been facing charges of murder and terrorism, appeared on Monday before a military commission in Guantanamo, where he was expected to be arraigned.
Instead, the judge, army Col. Peter Brownback, dismissed the charges for technical reasons.
Under the Military Commissions Act that was revised and passed by the U.S. Congress in October 2006, military commissions only have jurisdiction to try "unlawful enemy combatants." However, Khadr was classified by a military panel in 2004 as only an "enemy combatant" — which is what led the judge to dismiss the charges on Monday.
The military judge hearing Hamdan's case later dropped all charges against him as well, similarly reasoning the Pentagon had failed to classify him properly.
Lt.-Cmdr. Charles Swift, who represents Hamdan, said that "if we go back to a system that's tried and true, the court martial," then lawyers can resume proving their clients' innocence or guilt, "rather than playing these procedural games."
None of the roughly 380 detainees at Guantanamo have been classified as "unlawful" enemy combatants.
Audrey Macklin, an associate law professor at the University of Toronto, told CBC News on Tuesday that the military commissions are viewed among most legal experts she knows — American or otherwise — as "a travesty.
"There is no such thing in law as an 'unlawful combatant' or 'unlawful enemy combatant,'" she said, adding that Monday's rulings bespeak "the larger disarray of the military commission" resulting from an "ad hoc concoction of a process that doesn't really exist."
'It's a failure'
Macklin also noted that since Khadr was a minor when he allegedly killed a U.S. medic, he should be subject to a different set of culpabilities than the adult prisoners at Guantanamo — an argument also posed by some international human rights groups.
Khadr was 15 when he was captured in Afghanistan in 2002 and imprisoned in Guantanamo. He was accused of throwing a grenade that killed an American medic, Sgt. First Class Christopher J. Speer.
U.S. army Sgt. Layne Morris, who says Khadr wounded him in a battle in Afghanistan in 2002, reacted on Tuesday to published reports of Khadr's sister's concern over her brother's health
"Whiney terrorists are probably the most irritating thing I've heard," he said.
"I mean this is a person who has indicated that her greatest goal in life was to become a martyr for the cause. So to hear her whining about the treatment of her brother, how he has got to be locked up, this is a kid who begged to be killed. I don't have any sympathy for her or him or anybody in that outfit."
Col. Dwight Sullivan, the chief of U.S. defence lawyers at Guantanamo, told CBC News "the experience of the military commission system demonstrates that it's a failure.
"Rather than trying to revive these charges, it seems time for the United States to take a new look and find a new way to deal with these cases," he said.
Sullivan suggested using the U.S. federal court system as an alternative.
Appeal within 72 hours
Officials at the Pentagon said the rulings exposed flaws in the military commissions and that they would consider appeals. The U.S. Defence Department said Monday that there would be an appeal of the judge's decision within 72 hours, but if appeals failed, the departmentcould redesignate the detainees.
Despite the rulings, however, it's unlikely to mean freedom for either Hamdanor Khadr — the only Canadian at the U.S. prison — or any of the other detainees there.
Khadr and Hamdan are two of only three Guantanamo prisoners who faced charges under the new system.
Hamdan, charged with conspiring to harm U.S. citizens, has admitted to being a driver for Osama bin Laden but denied taking part in the Sept. 11, 2001, attacks against the United States.
David Hicks pleaded guilty in March to providing material support to al-Qaeda. He was released from Guantanamo and is serving out his nine-month sentence in his native Australia.