25/08/2007
By WILLIAM GLABERSON
WASHINGTON, Aug. 24 — In an effort to revive the war crimes trials at Guantánamo, military prosecutors argued in a special appeals court on Friday that defects in their cases identified by two military judges in June can be repaired and that the prosecutions can proceed.
“We’re attempting to start the trials,” said a military prosecutor, Francis Gilligan, a retired Army colonel. “We’ve sort of had a judicial stall.”
The entire war crimes system at Guantánamo was halted in June when the two military trial judges ruled that detainees had not been properly declared unlawful enemy combatants, which they said was a requirement of the 2006 law that set up the system for trying detainees.
The standstill has been a frustration for Bush administration officials who have struggled to establish a functioning war crimes system. It has also been a boon to critics who have described the legal system at Guantánamo as a patchwork of invented procedures designed to strip detainees of fundamental rights.
“This is about the credibility of the United States and the perception around the world of our commitment to the rule of law,” a military defense lawyer, Lt. Cmdr. William C. Kuebler, told reporters after the hearing on Friday. “This is a lawless process.”
The arguments Friday were to a panel of three military appeals court judges in a borrowed courtroom half a block from the White House. It was the first session of the United States Court of Military Commission Review, a new tribunal established to consider appeals from Guantánamo.
At the hearing, defense lawyers challenged the legitimacy of the appeals court itself, arguing that it was improperly constituted because its members were appointed not by the secretary of defense, as called for by law, but by a deputy secretary.
The proceeding on Friday was an appeal by the prosecution of the ruling by one of the Guantánamo trial judges who dismissed war crimes charges against a detainee, Omar Ahmed Khadr, a 20-year-old Canadian from a family with deep ties to Al Qaeda. Mr. Khadr was charged with the murder of an American soldier during a firefight in Afghanistan, providing material support for terrorism and other crimes.
The trial judge, Peter E. Brownback III, an Army colonel, noted in his June 4 ruling that the 2006 law said that only detainees who had been declared unlawful enemy combatants could be tried for war crimes by the military commissions at Guantánamo.
He ruled that a prior military hearing, a combatant status review tribunal, had only determined that Mr. Khadr was an enemy combatant and made no finding about whether Mr. Khadr was a lawful or unlawful combatant. He wrote later that the distinction was “not mere semantics,” as some at the Pentagon have claimed. He also ruled that he did not have the power to declare Mr. Khadr an unlawful combatant to give himself jurisdiction over the war-crimes case.
That analysis, which a second military judge agreed with the same day in another case, has stopped all the war crimes cases because none of more than 550 status review hearings at Guantánamo have determined that detainees were “unlawful” enemy combatants.
The international law of war defines unlawful combatants as fighters who, for example, do not wear military uniforms and conceal their weapons. Lawful combatants, such as those fighting for established national armies, have greater legal protections.
In his argument for the prosecution on Friday, Mr. Gilligan said that the appeals court could read the status review tribunals as declaring that Mr. Khadr was an unlawful combatant, in part because Al Qaeda does not follow the rules of war.
But even if the appeals judges rejected that approach, he said the prosecution should be permitted to present proof to a trial judge that Mr. Khadr in fact was an unlawful combatant and therefore could be prosecuted before a military commission.
In their questions, at least two of the appeals judges expressed skepticism of the prosecution claim that the prior status-review holdings could be read as having declared detainees unlawful combatants. But all three suggested they were considering whether the military trial judges could decide whether detainees are unlawful combatants and therefore eligible for prosecution by military commissions.
If that were the ruling, Mr. Gilligan, the military prosecutor said, “the trials will go forward.”
SOURCE: New York Times
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