Oh, this is fantastic. The child soldier that our military accused of war crimes for lobbying a grenade at an invading soldier gets off on a huge honking technicality.
It seems the Military Commissions Act is fatally flawed.
A military judge on Monday dismissed terrorism-related charges against a prisoner charged with killing an American soldier in Afghanistan, in a stunning reversal for the Bush administration’s attempts to try Guantanamo detainees in military court.
The chief of military defense attorneys at Guantanamo Bay, Marine Col. Dwight Sullivan, said the ruling in the case of Canadian detainee Omar Khadr could spell the end of the war-crimes trial system set up last year by Congress and President Bush after the Supreme Court threw out the previous system.
The judge, Army Col. Peter Brownback, said he had no choice but to throw the Khadr case out because he had been classified as an “enemy combatant” by a military panel years earlier _ and not as an “alien unlawful enemy combatant.”
The Military Commissions Act, signed by Bush last year, specifically says that only those classified as “unlawful” enemy combatants can face war trials here, Brownback noted during the arraignment in a hilltop courtroom on this U.S. military base.
Sullivan said the dismissal of Khadr case has “huge” impact because none of the detainees held at this isolated military base in southeast Cuba has been found to be an “unlawful” enemy combatant.
“It is not just a technicality _ it’s the latest demonstration that this newest system just does not work,” Sullivan told journalists. “It is a system of justice that does not comport with American values.”
Sullivan said the judge hearing the case of the only other Guantanamo detainee currently charged with crimes is not bound by Brownback’s ruling but that he expected the judge would make the same decision.
Brownback’s ruling came just minutes into Khadr’s arraignment, in which he faced charges he committed murder in violation of the law of war, attempted murder in violation of the law of war, conspiracy, providing material support for terrorism and spying.
“The charges are dismissed without prejudice,” Brownback said as he adjourned the proceeding.
Khadr was captured after a firefight in 2002 in which he was wounded and allegedly killed a U.S. Army soldier with a grenade. He appeared in the courtroom with a beard and wearing an olive-green prison uniform.
A prosecuting attorney said he would appeal the dismissal of the case.
Under the new war-crimes trial system, the prosecution has 72 hours to appeal, but the court designated to hear the appeal _ known as the court of military commissions review _ doesn’t even exist, Sullivan noted.
The son of an alleged al-Qaida financier, Khadr is accused of killing U.S. Army Sgt. Christopher Speer with a grenade during a firefight in Afghanistan on July 27, 2002.
Khadr’s attorneys had decried the charges against him, saying he was a child soldier and should be rehabilitated, not imprisoned.
“The U.S. will be the first country in modern history to try an individual who was a child at the time of the alleged war crimes,” the attorneys said in a joint statement in April.