Guantanamo judge drops charges against Khadr

CBC (Constant Bolshevik Crap) ^ | Monday, June 4, 2007 | Some Staff Comrade

[GMMAC]

Guantanamo judge drops charges against Khadr

CBC News
Last Updated: Monday, June 4, 2007 | 1:19 PM ET

An American military judge abruptly dropped all charges on Monday against Omar Khadr, although it's unlikely to mean freedom for the only Canadian at the U.S. Guantanamo Bay prison in Cuba.

The 20-year-old from the Toronto area, who had been facing charges of murder and terrorism, appeared before a military commission in Guantanamo, where he was expected to be arraigned.

In this courtroom sketch, reviewed and cleared for release
by U.S. military officials, Omar Khadr, far left, sits flanked
by two civilian lawyers and one military lawyer inside the courtroom during a U.S. Military Tribunal arraignment,
at Guantanamo U.S. Naval Base on Monday.
(Janet Hamlin/Associated Press)

Instead, the judge, army Col. Peter Brownback, dismissed the charges for technical reasons.

"We're very happy about it," Khadr's sister, Zaynab, told CBC News in Toronto. "We're surprised."

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.

CBC News's Bill Gillespie, reporting from Guantanamo, said Khadr's classification as an enemy combatant means he was fighting on the battlefield, but not necessarily acting unlawfully.

Khadr was 15 when he was captured in Afghanistan in 2002 and imprisoned in Guantanamo. He was accused of throwing a grenade that killed American medic Sgt. First Class Christopher J. Speer.

The U.S. Defence Department said Monday that there would be an appeal of the judge's decision within 72 hours. Khadr will either be re-arraigned or will have his status reviewed by a military tribunal, the Pentagon said.

"There are more questions than answers at this point," a Pentagon official told CBC News, noting that Khadr would not be returning to Canada any time soon.

Khadr's sister said she is still holding out hope her brother will be released.

"I don't know what to expect, I'm just hoping better news comes along soon," she said. "I hope my brother can come home."

She said she hasn't been allowed to speak to her brother since March, but knows he's coping with injuries to his eyes and knees, as well as mental anguish from being imprisoned for so long, at such a young age. Khadr was shot during his arrest.

"I'm hoping he's hanging in there," Zaynab said. "I know his health isn't very good."

Time for Ottawa to intervene: Amnesty

Alex Neve, the secretary general of Amnesty International Canada, said the Canadian government should act swiftly, and demand the U.S. return Khadr to Canada. Neve said Khadr could be tried under the Canadian court system, provided there was appropriate evidence to justify charges.

"It's certainly vital that the Canadian government intervene forcefully now," he told CBC News. "It's been a very dismal reaction to date from the Canadian government on this case."

Neve also pointed out that Ottawa can no longer justify inaction by arguing that the case is before a U.S. court and can't be meddled with.

"They should be intervening directly with U.S. officials because it is now back in the hands of the U.S. government to decide what to do with this case," Neve said.

Canada's Foreign Affairs Department would not comment on Khadr's case on Monday, but said it is reviewing the situation.

Ruling could jeopardize Guantanamo trial system

Col. Dwight Sullivan, the chief of U.S. defence lawyers at Guantanamo, said Monday's ruling could jeopardize the revised military commission system set up by Congress and U.S. President George W. Bush.

The revisions came after the U.S. Supreme Court ruled in June 2006 that the previous Guantanamo trial system was illegal.

None of the roughly 380 detainees at Guantanamo have been classified as "unlawful" enemy combatants.

"It's the latest demonstration that this newest system just doesn't work," Sullivan said. "It's a system of justice that does not comport with American values."

Khadr is one of only three Guantanamo prisoners who faced charges under the new system.

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.

Salim Ahmed Hamdan of Yemen is currently having his case heard in Guantanamo. Hamdan, charged with conspiring to harm U.S. citizens, has admitted to being a driver for al-Qaeda leader Osama bin Laden but denied taking part in the Sept. 11, 2001, attacks against the United States.

The prisoners who haven't been charged are being held at the U.S. naval prison on suspicion of having links to the Taliban and al-Qaeda.

With files from the Associated Press

[GMMAC]

From the National Post's Full Comment Blogsite:
Columnist Jonathan Kay on the acquittal of Omar Khadr

I used the word "acquittal" in the subject line of this post. Is that the right word? Who knows. It seems every time I check the news, the White House or the U.S. courts have imposed some new legal wrinkle in their endlessly transmogrifying apparatus for trying accused terrorists and other "unlawful combatants."

Today's news is that charges of murder and terrorism were dismissed in the case of Omar Khadr, 20, one of the various jihadi offspring of Canadian terrorist Ahmed Said Khadr. Khadr jr. has been held at Guantanamo Bay since 2002, when he allegedly threw a grenade that killed U.S. army Sgt. Christopher Speer during the siege of an al-Qaeda outpost near Khost, Afghanistan five years ago. Since then, Khadr has fired his American military attorneys, grown a beard, threatened to boycott the proceedings and, according to his new lawyers, may possibly be going nuts.

I actually have some sympathy for Khadr. The guy was only 15 at the time he allegedly killed Speer. The killing was committed in the name of a despicable cause. But by all accounts, the kid had been fed jihadi claptrap from his father his whole life — and dragged around the world in the service of Holy War. I'm not sure most adolescents have the emotional and mental wherewithal to tell right from wrong at that age when their own family members are telling them to fulfill their murderous duty to Allah.

But whatever happens to Khadr, this latest botch-up shows how incompetent and embarrassing has been the White House's legal response to international terrorism since 9/11.

George W. Bush's first response was to build an extra-constitutional prison in Cuba, and then create a unique legal framework that literally allowed him to detain any person (American citizen or otherwise) for any amount of time, solely on the basis of his designation as an unlawful combatant. (The doctrine was taken to its furthest extreme in cases involving U.S. citizens, such as that of Jose Padilla.)

Even many of those observers (such as me) who take the threat of terrorism seriously, and want to see Western countries deal with it in a muscular way, were appaled at the idea of a detention system that seemed completely bereft of checks and balances. As a result of the lack of accountability, Guantanamo became stuffed not only with bona fide terrorists, but also innocent Afghan farmers, drivers and errand boys who'd been delivered to American troops for bounty money. Only after years of incarceration were most of these men released. Guantanmo became an American black eye, one that had discredited the United States and its war on terror in European capitals.

Over time, U.S. courts have whittled down this lack unaccountability step by step. And so now detainees have access to tribunals to determine their status. Predictably, however, the White House has tried to turn these into kangaroo courts, and many detainees have refused to participate. Even some government-appointed military lawyers have criticized them. The whole tribunal process has the air of ad-hocery — since they were not created according to any particularly executive or legislative plan, but rather as a purely reactive move following on court judgments.

In the case of Khadr, his acquittal gives some credibility to the procedures. Or maybe not: According to some reports, the government will now simply retry him after getting a tribunal to rebrand him an "unlawful enemy combatant" as opposed to just an "enemy combatant."

Right, right ... If you can figure out a principled way of predicting who in Gitmo is "unlawful" and who isn't, you're smarter than me. There's got to be an effective, principled way of detaining and prosecuting terrorists who want to blow up our cities. But the United States definitely hasn't found it yet.

jkay@nationalpost.com

[GMMAC]

[marron]

Khadr's classification as an enemy combatant means he was fighting on the battlefield, but not necessarily acting unlawfully.

So, as far as I'm concerned, if he's an enemy combatant, he can be held until the end of hostilities, and if he's not "unlawful" he has no right to a hearing.

No problem.

[yobid]

Lookie, he’s just a yoot. I’m sure he’ll grow up to be a fine citizen /s

[Bringbackthedraft]

Lookie, he’s just a yoot. I’m sure he’ll grow up to be a fine citizen /s....................Of course, maybe he’ll even study for the Priesthood, ya betcha.

[massgopguy]

“One day a heard a voice say “reach for it mister”, I turned around and came face to face with a 10 year old kid. I just threw my guns to the ground and walked away. The little bastard shot me right in the ass.” - The Waco Kid

[fanfan]

BARF!

[Squawk 8888]

Why they didn’t go for the slam-dunk in this case is beyond me- he’s a Canadian citizen who knowingly took up arms on behalf of Canada’s enemy, which makes him guilty of High Treason.

[USFRIENDINVICTORIA]

Good question!

If we wind up paying this POS millions in “compensation”; I’m going to be ill.

[canuck_conservative]

"In this courtroom sketch, reviewed and cleared for release by U.S. military officials, Omar Khadr, far left, sits flanked by two civilian lawyers and one military lawyer ....."

If he's on the far left, and everybody's sitting to his right, how can he be "flanked"??

(Yah, nitpicking I know, but still ...)

[lepton]

It sounded to me like a technical procedural thing, which will result in the classification cname changed to match what the law says, and then charges refiled.

[Buckeye McFrog]

so...it all depends on what your definition of “unlawful” is???

We should just ship this guy back to Canada and let Chris Pronger and Todd Bertuzzi deal with him.

[marron]

If you can figure out a principled way of predicting who in Gitmo is "unlawful" and who isn't, you're smarter than me. There's got to be an effective, principled way of detaining and prosecuting terrorists who want to blow up our cities.

There is. You declare war on them, and you send some stout men to go and get them.

Our ability to fight a war to a successful conclusion seems to have eroded along with our clarity of what war is. War is by its very nature an extra-legal endeavor.

Typically war doesn't start because you decided to start it, rather a conflict has festered for some time until some event shocks you into the realization that it has gone beyond your ability to manage it with existing law and existing legal institutions.

In other words, if a conflict can be managed by men with badges and other men with suits and briefcases, you are not yet at war, though you may have occasionally used some rather heavy firepower.

The day you awaken to realize that the conflict has gone beyond your ability to handle from within the law is the day you recognize that you are at war.

At that point, you aren't going to issue subpoenas, you aren't going to send process servers to deliver a summons, you are going find your enemy and kill not only him, but anyone unlucky enough to be standing near him.

At that point, your enemy's legal guilt or innocence is entirely irrelevant. By his own legal system, what he is doing is probably legal, or at the very least morally laudable by his lights. You don't care. Your measure at that point is a military one; is he a military threat, in your military opinion, or is he not.

Your military purpose at that point is not a return to status quo ante, however legal it might be, because status quo ante is how you found yourself at war in the first place. Your purpose must be to change the facts on the ground such that a new status quo, one you can live with, can take root.

This is not a legal enterprise and can never be. War is what exists when there is a rupture in the law, and only when you have eliminated the problem that caused the rupture, and only when you have created a new status quo can you transition back to rule of law. When you have returned to rule of law, the war is over. Not until.

Trying these combatants in court is to completely misunderstand what war is. A battlefield is not a crime scene, and can't be managed as a crime scene. Soldiers can't be pulled from a battlefield to testify in court, trying to remember personal characteristics of someone they remember only through a haze, or more probably not at all.

Any good lawyer worth his salt should be able to beat that case.

But its not about that.

A prisoner is in custody because, in your military opinion, he is a threat, or has information about a threat. Its not about guilt or innocence, so a hearing does not have the same meaning as in a civilian court. Is he guilty? Of defending his country, or his cockamamie beliefs? Irrelevant. Is he a threat, is the question. And your military opinion is the evidence.

If the answer is no, you kick him loose. If yes, you hold him. If he is someone who will always be a threat, even in custody, you hang him. You may hold a hearing to document why you are going to hang him, but its outcome is not in doubt, because its not a trial in the normal sense. Its a war-trial, for a war-purpose. Generally war-trials are necessary for the transition back to rule-of-law, but they are still "prior". Their purpose is to tie-up loose ends so that peace can resume. They are not trials in the normal sense and can't be.

Trying to shoe-horn warfare into court-room jurisprudence is to misunderstand and distort both.

[Clive]

The court held that it did not have jurisdiction to try hom on the charges laid.

That means that the doctrine of autrefois acquit does not apply.

It is conceivable that should he be released from Gitmo then civilian courts can still try him if he fits within the criminal code of their jurisdictions.

That would include Canada.

[lepton]

so...it all depends on what your definition of “unlawful” is???

Well, maybe kindof sortof. More specifically, if the latter of the two situations I referred to is correct, then it's relying on the idea that one can't be classified of being something that the trial is intended to convict you of being at the end of the trial. Accused, yes. Classified, no. I don't know if that is what the tribunal was getting at or not. I rather think that it's a paperwork issue - one which just means the paperwork has to be refiled with the proper certification.

[lepton]

A prisoner is in custody because, in your military opinion, he is a threat, or has information about a threat. Its not about guilt or innocence, so a hearing does not have the same meaning as in a civilian court. Is he guilty? Of defending his country, or his cockamamie beliefs? Irrelevant. Is he a threat, is the question. And your military opinion is the evidence.

There are held enemy combatants, and there are war criminals. Those thar you describe are in the first category. What Gitmo holds are those who are both.

If he is reasonably perceived a military threat, he is held and there is no need for a trial. If, IN ADDITION to being a military threat, he is believed to have also committed war crimes, then he can be tried. Even if found not guilty of the War crimes, there is no reason he need be let go until he is no longer considered a military threat. When he is no longer considered a military threat, only then does the clock start for him to have to be tried for war crimes.

[lepton]

So, as far as I'm concerned, if he's an enemy combatant, he can be held until the end of hostilities,

Yup.

and if he's not "unlawful" he has no right to a hearing.

More like, "there's no point to a hearing".

[Valin]

Thank you.

[Sam Gamgee]

Except the Supreme Court and the Congress is hell bent on closing Gitmo asap.