From the Los Angeles Times, Sept. 25 (links added):
WASHINGTON — A decision Monday night by a military court of review will pave the way for the Pentagon to restart its terrorism tribunals for detainees held at Guantanamo Bay, Cuba.
The appeals panel, the U.S. Court of Military Commission Review, ruled that the commissions set up by Congress and the Defense Department did have jurisdiction to decide whether Omar Khadr was an unlawful enemy combatant.
The decision reinstates charges against Khadr, a Canadian who was 15 when he was arrested after a firefight with U.S. forces in Afghanistan in the summer of 2002. During a hearing in 2004, he was designated an enemy combatant.
But a military judge threw out the case in June, instantly halting the Bush administration’s plans to begin trials of up to 80 of the approximately 340 detainees being held at the military prison in Cuba.
The decision Monday overturns that roadblock. Pentagon officials said that the timeline for restarting trials would be up to the judge, but that they were prepared to move swiftly.
“We welcome the court’s decision,” said Navy Cmdr. Jeffrey D. Gordon, a Pentagon spokesman. “We will proceed expeditiously to get military commissions back to trial at Guantanamo.”
Critics of the prison at the Guantanamo Bay naval base said they expected the Pentagon to try to quickly begin trials for two of the detainees who had been charged, and to move to rapidly charge three more.
“I would not be surprised one bit if they start these up again,” said Jumana Musa, a lawyer for Amnesty International. “But the larger question is the wisdom of doing so.”
Musa said it was unclear whether Khadr would be allowed to appeal the court of review’s decision to a regular federal court. If he is allowed to appeal, the case would be heard by the U.S. Court of Appeals for the District of Columbia Circuit.
Although Defense Secretary Robert M. Gates has publicly raised doubts about holding the trials at Guantanamo, officials at the Justice Department and the White House have blocked that decision. Administration officials believe that if the detainees are moved out of Guantanamo, they will have a stronger claim to review under the doctrine of habeas corpus, which would allow the detainees to challenge their detention in a federal, not a military, court.
“They are not feeling squeamish about Gitmo,” Musa said. “They seem to intend to go forward and charge more and more people.”
The Supreme Court is to take up the issue of detainees’ habeas rights this fall. If it overrules congressional measures limiting detainees’ rights to appeal to federal courts, the military commissions could be stalled once again if lower federal courts step in.
Critics also have pointed out that the Military Commissions Act of 2006, which set up the current versions of the military tribunals at Guantanamo, has not been considered by the high court. If the Supreme Court did throw out parts of the commission system, as it did in 2006’s Hamdan vs. Rumsfeld decision, the Pentagon would have to start from scratch.
But supporters of the system argue that the Supreme Court is unlikely to throw out the entire military commissions system because it has been blessed by Congress. The fact that the legislative branch had no input into the original system was at the center of the court’s critique in the Hamdan decision.
Khadr was charged with throwing a grenade that killed Army Sgt. 1st Class Christopher J. Speer, planting roadside bombs, and conspiring with Osama bin Laden and other members of Al Qaeda.
The central issue in Khadr’s case seemed to some to be ridiculously technical. In 2004, Khadr was ruled an “enemy combatant.” The Military Commissions Act of 2006 set up the tribunals to try “alien unlawful enemy combatants.”
In Monday’s decision, Navy Capt. John W. Rolph, the deputy chief judge of the court, wrote that the trial judge was correct in determining that only unlawful combatants could come before the court. The appeals court also noted that the original Combatant Status Review Tribunal that ruled Khadr was an enemy combatant used a “less exacting standard” than was laid out in the Military Commissions Act.
But Rolph said the trial judged erred “in ruling he lacked authority . . . to determine whether Mr. Khadr is an ‘unlawful enemy combatant’ for purposes of establishing the military commission’s initial jurisdiction to try him.”
Rolph wrote that the combatant status review was not necessary to determine Khadr’s status. The appeals court also ruled that the trial judge should have allowed the government to present the evidence that Khadr’s actions made him an unlawful combatant.
By dismissing the charges without giving prosecutors the chance to make the case that Khadr was an unlawful combatant, Rolph said, the trial judge “abused his discretion.”
Case is returnedWith its decision, the court of review sent the case back to the trial judge, who will again rule on the commission’s jurisdiction over Khadr, but this time after reviewing the prosecution’s evidence.
In the 25-page ruling, the court laid out a legal road map for military prosecutors.
“The court’s ruling outlined what must be done to establish jurisdiction, and we will follow that direction,” Gordon said.
Monday’s decision was the first by the appeals court, which did not exist when the charges against Khadr were thrown out. The panel’s other two judges, Army Col. Paul P. Holden Jr. and Air Force Col. David R. Francis, concurred with Rolph.
Unlike other detainees from English-speaking countries, Khadr, the son of an Al Qaeda financier, has received little support in Canada. But human rights lawyers continue to argue it is wrong to try him as an adult.
Critics of the case had originally hoped that the charges against Khadr would be thrown out because he was a juvenile at the time of his arrest, and his lawyers may well renew that line of argument when Khadr’s tribunal resumes.