National Security

U.S. urges military appeals court to let detainee's case proceed

Camp Delta at Guantanamo Bay
Camp Delta at Guantanamo Bay Patrick Farrell/MCT

WASHINGTON — The Bush administration looked to jump-start its stalled terrorism trials Friday, urging a military appeals court to let the case against a Canadian detainee accused of killing a U.S. soldier in Afghanistan go forward.

The case involves Omar Ahmed Khadr, one of two detainees at the Guantanamo Bay, Cuba, detention camp whose military trials fell apart in June because judges found that the Pentagon — by calling the detainees "enemy combatants" — failed to distinguish between prisoners of war entitled to certain protections and "unlawful enemy combatants," who could be tried by a war crimes court.

Lawyers for the administration argued Friday, in a court set up in recent weeks just to hear the appeal, that the military judges do have the authority to hear the cases and that all suspected al Qaida fighters should be considered "unlawful enemy combatants."

"If the judges rule in our favor I'd say the trials will go forward," retired Col. Francis Gilligan, the prosecution's lead attorney, told a crush of reporters outside the courthouse.

The June decision to drop the war-crimes charges has put the brakes on the administration's plan to try 14 so-called high-value detainees formerly held by the CIA — among them alleged 9/11 mastermind Khalid Sheikh Mohammed — to try them for war crimes.

The three-judge panel that heard the government's appeal appeared to lean toward kicking the case back to the military judge.

Gilligan said if the government loses, it could give Khadr another Combatant Status Review Tribunal and likely declare him an "unlawful enemy combatant." He said the government would prefer not to take that route, noting it would cause at least a 90-day delay.

A court ruling is expected soon.

Gilligan argued that all suspected al Qaida members or those who help them are considered "unlawful enemy combatants" under a presidential directive and a Pentagon memo.

"Has Mr. Khadr been found an unlawful enemy combatant? Absolutely he has," Gilligan told the panel.

But Judge John Rolph, the chief judge of the Navy and Marine Corps Court of Criminal Appeals, challenged Gilligan on the point, saying the presidential memo mentions only that members of the Taliban are deemed "unlawful combatants."

The judges seemed troubled that Khadr's status review was in 2002, but that he will be tried under a system created in 2006.

"If he was determined an unlawful enemy combatant, it could be that it was under less exacting standards than in the (2006 law) Military Commissions Act," Rolph said.

The judges didn't seem moved by Khadr's attorneys' contention that the court — hearing the appeal in a borrowed courtroom a stone's throw from the White House — was illegitimate because it was so hastily convened.

"This court was created on the fly," said William Kuebler, an attorney for Khadr, noting the court existed only as a post office box until the military judge in June dropped the war-crimes charges, creating the need for an appeals court.

The lawyers argued that the U.S. Court of Military Commission Review also lacked standing because its judges were assigned by Deputy Secretary of Defense Gordon England, and not Defense Secretary Robert Gates — as required by a 2006 law and a Defense Department manual.

But review judge Paul Holden, a colonel and appellate military judge at the U.S. Army Court of Criminal Appeals, questioned whether Kuebler could point to any provision that would prevent Gates from delegating such duties.

The judges declined to hear the attorneys' appeal that the Military Commissions Act that created the courts shouldn't apply to Khadr because he was a juvenile at the time he was detained. Rolph noted that the issue has yet to be heard at the trial court level.

Khadr's case has attracted increasing attention in Canada. A number of Canadian parliamentarians and law professors this week filed on his behalf with the U.S. Supreme Court, supporting detainees' rights to challenge their confinement. News reports in Canada suggest groups are pressuring the government there to press for his release.

Despite the fits and starts of the military trial system, Col. Morris Davis, the Pentagon's chief military commissions prosecutor, defended it to reporters.

"The notion that it's taking a long time shows this is a fair, robust process even more," Davis said. "This isn't a kangaroo court."

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