Court Reverses Ruling on Detainees

By Josh White
Washington Post Staff Writer
Tuesday, September 25, 2007

The new Court of Military Commission Review has ordered a military judge to reopen the terrorism case against a 20-year-old Canadian accused of killing a U.S. serviceman in Afghanistan, ruling that the judge's decision earlier this year to dismiss the case was in error.

In a 25-page opinion issued last night, a three-member panel of the court decided that judges in military commissions can determine whether terror suspects are "unlawful enemy combatants" and are therefore subject to trial. A judge at Guantanamo Bay, Cuba, ruled June 4 that Omar Khadr's case could not go forward because a military tribunal had merely determined he was an "enemy combatant" and because the judge believed he could not make such a determination of "unlawful" status.

The review court agreed that the military tribunals, known as Combatant Status Review Tribunals, did not determine whether Khadr was an "unlawful" combatant, a key distinction that U.S. law mandates for such cases to go to trial. But the court ruled yesterday that trial judges can hear evidence on a detainee's combatant status and therefore can proceed with the trials.

The Military Commissions Act setting up the U.S. system for trying alleged terrorists at Guantanamo demonstrates "clearly that a military judge presiding over a military commission may determine both the factual issue of an accused's 'unlawful enemy combatant status' and the corresponding legal issue of" the commission's jurisdiction to hear the case, according to the court's opinion.

The decision is a victory for the Pentagon, as it means military prosecutors can move forward with their case against Khadr and other detainees without having to convene new status tribunals. It is likely they will present videotapes of Khadr training with al-Qaeda and evidence of his involvement in what they allege are combat operations against U.S. forces in Afghanistan in 2002.

A similiar case, against Salim Ahmed Hamdan, is pending at Guantanamo. Prosecutors believe the judge in that case will enter a ruling that reflects the appeals court's decision and let the trial move forward soon.

"We are pleased with the Court of Military Commission Review decision and look forward to getting back into court soon and presenting evidence to prove that Omar Khadr is an unlawful enemy combatant subject to trial by military commission," Col. Morris Davis, the lead prosecutor, said last night.

"We have continued preparation of other cases during this interim period. There are some internal issues that have to be resolved before I forward any new charges to the convening authority, but I'm hopeful we can resolve those issues quickly and start some new cases."

Staff researcher Julie Tate contributed to this report.

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