GUANTANAMO BAY NAVAL BASE, Cuba - Military judges dismissed charges Monday against a Guantanamo detainee accused of chauffeuring Osama bin Laden and another who allegedly killed a US soldier in Afghanistan, throwing up roadblocks to the Bush administration's attempt to try terror suspects in military courts.
A soldier walks through a gate at Camp Delta at Guantanamo Naval Base in 2004. [Agencies]
They were the only two of the roughly 380 prisoners at Guantanamo charged with crimes, and the rulings stand to complicate efforts by the United States to try other suspected al-Qaida and Taliban figures in military courts.
Hamdan's military judge, Navy Capt. Keith Allred, said the detainee is "not subject to this commission" under legislation passed by Congress and signed by President Bush last year. Hamdan is accused of chauffeuring bin Laden's and being the al-Qaida chief's bodyguard.
The new Military Commissions Act was written to establish military trials after the US Supreme Court last year - ruling in a case brought by Hamdan - rejected the previous system. Defense attorneys argued the new system is full of problems.
The judges agreed that there was one problem they could not resolve - the new legislation says only "unlawful enemy combatants" can be tried by the military trials, known as commissions. But Khadr and Hamdan had previously been identified by military panels only as enemy combatants, lacking the critical "unlawful" designation.
The surprise decisions do not spell freedom for the detainees, who are imprisoned here along with the others suspected of links to al-Qaida and the Taliban.
"It is very difficult when practical conditions for him don't change," Joseph McMillan, one of Hamdan's civilian attorneys, told reporters Monday night. Hamdan's military attorney, Navy Lt. Cmdr. Charles Swift, said Hamdan "is relieved" by Allred's ruling.
"He hopes he gets a fair trial and, like the rest of us, is patiently waiting for it," Swift said.
Khadr was 15 when he was captured after a firefight in Afghanistan in 2002 in which he allegedly killed a US soldier and was wounded himself. He is now 20.
Khadr, appearing in the courtroom with a beard and wearing an olive-green prison uniform, seemed uninterested when his judge, Army Col. Peter Brownback, threw out the case. Khadr focused on his own image on a computer screen that showed a live TV broadcast of the proceedings.
The chief of military defense attorneys at Guantanamo Bay, Marine Col. Dwight Sullivan, said the dismissal of the case against Khadr could spell the end of the war-crimes trial system hurriedly set up last year by Congress and Bush after the Supreme Court threw out the previous system.
But Army Maj. Beth Kubala, spokeswoman for the Office of Military Commissions that organizes the trials, said "the public should make no assumption about the future of military commissions."
She said they will operate openly and fairly and added that dismissals of the charges "reflect that the military judges operate independently."
Legal experts said Brownback apparently left open the door for a retrial for Khadr, and that the Defense Department can possibly fix the jurisdictional problem by holding new "combat status review tribunals" for any detainee headed to trial.
Sullivan said the dismissal 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."
The Military Commissions Act specifically says that only those classified as "unlawful" enemy combatants can face war trials here, Brownback noted.
The distinction is important because if they were "lawful," they would be entitled to prisoner of war status, which under the Geneva Conventions would entitle them to the same treatment under established military law that US soldiers would get.
A Pentagon spokesman said the issue was little more than semantics.
Navy Cmdr. Jeffrey Gordon told The Associated Press said the entire Guantanamo system was set up to deal with people who act as "unlawful enemy combatants," operating outside any internationally recognized military, without uniforms, military ranks or other things that make them party to the Geneva Conventions.
"It is our belief that the concept was implicit that all
the Guantanamo detainees who were designated as 'enemy combatants' ... were in
fact unlawful," Gordon said.