Sheldon Alberts, CanWest News ServicePublished: Tuesday, June 05, 2007
U.S. NAVAL BASE GUANTANAMO - Omar Khadr was marched into the courtroom Monday in the grasp of two burly military guards, ready to face murder and terrorism charges almost five years in the making.
The alleged al-Qaida member was led out less than an hour later with his legal fate once again in limbo, after a U.S. military judge stunned American prosecutors by throwing out the Pentagon's case against the 20-year-old Canadian.
Omar Khadr: Judge said war crimes tribunal lacked jurisdiction
While Khadr remains in U.S. custody, the ruling by Army Col. Peter Brownback also threatens to derail the military commissions process established by President George W. Bush to try al-Qaida and Taliban terrorists following the attacks of Sept. 11, 2001."The significance of this ruling was enormous," said Col. Dwight Sullivan, the chief military defence lawyer for Guantanamo detainees. "What we have seen today is the latest demonstration that the military commissions system does not work ... The commission is an experiment that failed and we don't need any more evidence that it is a failure."
In his ruling, Brownback said the war crimes tribunal lacked jurisdiction to try Khadr because the U.S. government had made no determination whether the Canadian was an "unlawful enemy combatant" - a finding required by Congress to proceed with the case.
Khadr, accused of throwing a grenade that killed U.S. Army Sgt. Christopher Speer in 2002, had been classified by a combatant status review tribunal only as an "enemy combatant." But that ruling left open the technical possibility Khadr may have been legally fighting American forces under the laws of war, Brownback said.
"A person has a right to be tried by a court he knows has jurisdiction over him," Brownback said. Otherwise, he said, "a person could be facing trial for months without knowing if the court had legitimate jurisdiction."
Dennis Edney, Khadr's Canadian lawyer, said the decision shows that "rules are getting made up as they go along" at Guantanamo, and he called on Ottawa to begin efforts to have his client returned to Canada.
"You cannot have a trial without law," Edney said. "If this system is not good enough for Americans, why is it good enough for Canadians?"
Brownback said his decision does not preclude prosecutors from charging Khadr again in the future. Military prosecutors immediately requested 72 hours to decide whether they should appeal the judge's ruling.
Meantime in Ottawa, Foreign Affairs Minister Peter MacKay instructed Canadian diplomats to follow up on the case with the relevant U.S. authorities.
"It is our understanding that the decision is a procedural one at this stage and we are keeping a very close watch on this file," MacKay's spokesman Dan Dugas said.
Public Safety Minister Stockwell Day brushed by reporters, saying only that the government is "still waiting to hear the full story there; we don't have all the details yet."
Opposition critics called for intervention by the minority Conservative government, suggesting Khadr be returned to Canada.
"I think every Canadian is concerned about the conditions in Guantanamo," deputy Liberal leader Michael Ignatieff told reporters. "Mr. Khadr now appears to be in a situation of legal limbo, legal uncertainty. The Canadian government should take up his case actively."
"Whatever we may think about Mr. Khadr and his past, he is a Canadian citizen with the rights of a Canadian citizen and the government should take up his case actively with U.S. authorities," Ignatieff added/
The Pentagon, meanwhile, said the Khadr ruling was a minor technical hurdle that could be fixed with a new hearing to establish the young man's status as an illegal fighter.
"We believe that Congress intended to grant jurisdiction under the Military Commissions Act to try individuals, like Mr. Khadr, who are being held as enemy combatants," said Cmdr. Jeffrey Gordon, a Pentagon spokesman.
But the Bush's administration's problems may extend far beyond the Khadr case, with implications for all 380 detainees held as "enemy combatants" at Guantanamo. The Pentagon has said it plans to prosecute as many as 80 Guantanamo detainees, including 14 high-value detainees like alleged 9/11 mastermind Khalid Sheikh Mohammed.
The dramatic developments Monday marked the second time military charges against Khadr have been quashed since he was first sent to Guantanamo in October 2002.
Last year, the Bush administration had to scrap an earlier version of the military commissions after the U.S. Supreme Court ruled they violated international law.
Human rights groups attending Monday's hearing said the dismissal of Khadr's charges further underscores the deep flaws in trying alleged terror detainees in an entirely untested court system.
The Pentagon has so far successfully prosecuted only one case at Guantanamo. Australian David Hicks, a convert to radical Islam, was sentenced to nine months and returned to his home country after pleading guilty to conspiracy after the White House came under political pressure from Australia.
"If the U.S. government is wise, this will be the fatal blow to the commissions," said Jennifer Daskal, the U.S. program director for Human Rights Watch.
"Federal courts around the world have successfully prosecuted dozens of terrorism cases since 9/11. Compare the military commissions - there has been one conviction. To say the scoreboard is lopsided would be an understatement."
Hicks's case differs from Khadr's, however, since he was sentenced by a military tribunal and Khadr's charges have been thrown out on jurisdictional grounds.
Khadr, who had not been seen in a military courtroom for more than a year, stared impassively during the proceedings, at times watching the legal arguments on a closed-circuit television screen at the defence table. He refused to stand when Brownback entered the courtroom and did not speak to his lone U.S. military attorney, Lt.-Cmdr. William Kuebler.
After almost five years in detention at Guantanamo, Khadr is no longer the young adolescent seen in dated photographs.
His hair and beard have grown out into long, bushy curls. He entered the courtroom in an olive-green detainee uniform with rubber flip-flops, a far cry from the Roots T-shirt and khaki pants he wore at an earlier appearance in January 2006.
Khadr spoke in whispers only to Edney, who was granted "foreign attorney consultant" status to advise him on his defence.
Khadr is the son of Ahmed Khadr, an al-Qaida financier, who was killed by Pakistani forces in 2003. Omar's brother, Abdullah, is facing possible extradition to the U.S. on accusations of selling weapons to al-Qaida.
Zaynab Khadr, Omar's sister, said Monday the family was "surprised" and "happy" about the judge's ruling.
Still, Khadr will likely remain imprisoned indefinitely because the Pentagon believes it has a strong terror case against. He had been charged with murder, attempted murder, spying, conspiracy and providing material aid to terrorists, all stemming from his activities in Afghanistan in 2002.
The U.S. contends it can continue to hold Khadr indefinitely until the war with al-Qaida is over.
"The ruling does not mean that anyone who is being held here is going to get out earlier than they would have otherwise," said Jameel Jaffer, director of the American Civil Liberties Union's national security project.
Opposition MPs in Ottawa, however, argued that Canada should look to the case of the Australian, David Hicks, in dealing with Khadr.
"This is an opportune time with the charges having been withdrawn for the Canadian government to step in," Comartin said. "I think they have a strong argument to be made. This individual was 15 years of age when the alleged crime took place. He was, by all intents and purposes, from what we understand, a child soldier. We should be invoking that treaty and insisting on the Americans treating him accordingly."
Comartin said that while the U.S. and Australia have brought Guantanamo Bay detainees back to their own prison systems after guilty pleas, the Canadian government has had minimal contact with Khadr.
"I think the most extensive contact has been CSIS (Canadian Security Intelligence Service) down there interrogating him," he said. "Our consul people have really had little instruction to do anything."
With files from Juliet O'Neill