By Josh White
Washington Post Staff Writer
Tuesday, June 5, 2007

A U.S. military judge dismissed all charges yesterday against a Canadian detainee at Guantanamo Bay, Cuba, ruling that his war-crimes trial cannot move forward under the current military commissions law, a decision that could delay future legal proceedings at the U.S. detention facility.

Army Col. Peter Brownback's decision suspended the case against Omar Khadr, a 20-year-old detainee who allegedly killed a U.S. serviceman during fighting in Afghanistan in 2002. Khadr, whom the military has labeled an "enemy combatant," was scheduled to be arraigned yesterday in what was to be the second case to go before a military commission at Guantanamo Bay.

But Brownback decided that the Military Commissions Act (MCA) of 2006, which sets the rules for trying detainees at Guantanamo Bay, limits such commissions to "unlawful enemy combatants" and concluded that the military has never classified Khadr as "unlawful."

While Pentagon officials dismiss this distinction as a technicality, it could stop all military commissions at the prison and prompt the U.S. military to develop a new method to classify detainees headed to trial. It also highlights flaws in the Bush administration's more than five-year effort to bring detainees to justice and in the hastily crafted legislation on military commissions passed by Congress in October.

Brownback found that because the Combatant Status Review Tribunal's (CSRT) term for those the military holds at Guantanamo Bay does not match Congress's law, the court could not proceed with the case. The tribunals determine whether detainees are enemy combatants.

"Judge Brownback did not question that the military commission would constitute the appropriate forum in which to try a member of al-Qaeda for alleged war crimes," said Maj. Beth Kubala, a spokeswoman for the Office of Military Commissions. "He determined that, as a technical matter, the existing CSRT definition was not identical to the definition under the MCA."

Military officials said yesterday that they could restart the tribunal process to allow them to add the word "unlawful" to their records. Officials maintained, however, that the tribunals have largely concluded that the detainees are members of al-Qaeda or other terrorist groups and therefore their battlefield actions are inherently unlawful. Khadr will not be released following the decision.

Sen. Lindsey O. Graham (R-S.C.), a sponsor of the MCA, said in an interview yesterday that he thinks the law applies to Guantanamo Bay detainees, but added that he is pleased that judges are scrutinizing it.

"This is a good example of where, in a rule of law context, words matter," Graham said. "I readily understand that in the terrorist world, words don't matter. This is one of our strengths, not a weakness."

Sen. Christopher J. Dodd (D-Conn.), who has been working to rewrite the MCA, said yesterday that Congress must fix "egregious flaws" in the law. "The current system of prosecuting enemy combatants is not only inefficient and ineffective, it is also hurting America's moral standing in the world," he said in a statement.

Military prosecutors have requested a 72-hour delay in the case to consider filing an appeal to the Court of Military Commission Review, officials said yesterday.

Human rights groups called for the military commissions process to be scrapped in favor of moving the cases to military courts-martial or to U.S. federal courts.

"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.