Charges Against Guantanamo Detainee Set for Trial Dropped Over Limit in Law

"This is what you get when you throw away a good system of military courts-martial that everybody knows and you make up a new system as you go along," said Tom Malinowski, Washington advocacy director for Human Rights Watch. "You get more error than trial."

In July 2002, Khadr, then 15, was detained after emerging from a firefight in southeastern Afghanistan in which he threw a grenade that killed Sgt. Christopher J. Speers, according to U.S. authorities. Whether he is determined a lawful or unlawful combatant is critical, because lawful combatants who kill opposing forces are not considered war criminals.

David Rivkin, a member of the Justice Department under Presidents Ronald Reagan and George H.W. Bush, said yesterday that Brownback could have continued with the case by determining that Khadr is an unlawful combatant. After Khadr's CSRT hearing on Sept. 7, 2004, officers wrote that he is an "enemy combatant" who supported the Taliban and al-Qaeda, but they only had the option of calling him an "enemy combatant" or "no longer an enemy combatant."

The CSRTs found that 520 Guantanamo Bay detainees were enemy combatants and 38 were no longer enemy combatants. There are currently 380 detainees at the prison, and prosecutors are hoping to bring about 80 of them before military commissions.

Charges against another Guantanamo Bay prisoner, Yemeni national Salim Ahmed Hamdan, were later dropped by another judge on the same grounds, Reuters reported.

Rivkin said that anyone considered an enemy combatant is also unlawful. "To give everyone a new CSRT just to label them unlawful would be silly," he said. "They should go on appeal and get it thrown out."

In Toronto, Khadr's sister, Zaynab Khadr, said the family hopes "this is the beginning of a lot of good news."

Staff writer Doug Struck in Canada and staff researcher Julie Tate contributed to this report.