Guantanamo judge drops charges against Khadr

An American military judge abruptly dropped all charges on Monday against Omar Khadr, although it's unlikely to mean freedom for the only Canadian at the U.S. Guantanamo Bay prison in Cuba.

The 20-year-old from the Toronto area, who had been facing charges of murder and terrorism, appeared before a military commission in Guantanamo, where he was expected to be arraigned.

Instead, the judge, army Col. Peter Brownback, dismissed the charges for technical reasons.

"We're very happy about it," Khadr's sister, Zaynab, told CBC News in Toronto. "We're surprised."

Under the Military Commissions Act that was revised and passed by the U.S. Congress in October 2006, military commissions only have jurisdiction to try "unlawful enemy combatants." However, Khadr was classified by a military panel in 2004 as only an "enemy combatant" — which is what led the judge to dismiss the charges on Monday.

The surprise development as the war court reconvened was the latest setback in three years of on-again, off-again Bush administration efforts to stage the first war crimes tribunal since World War II.

Judge Peter Brownback said the charge sheet against the 20-year-old captive, accused of the killing at age 15, did not sufficiently meet a two-step process defined by Congress last year in the Military Commissions Act.

He declared the dismissal ''without prejudice,'' meaning the Defense Department could seek in the future to charge the Toronto-born captive, who has been held here as an ''enemy combatant'' for nearly five years.

Khadr looked unmoved by the ruling that suspended his war crimes trial. He still remains here as a war-on-terror captive in the custody of the Bush administration, which has declared its power to hold detainees indefinitely at this remote U.S. Navy base in southeast Cuba as ``enemy combatants.''

The White House's legal regime at Guántanamo Bay was thrown into chaos today when a military judge threw out all charges against a detainee held there since he was 15.

The decision by the judge, Colonel Peter Brownback, to dismiss all charges against the detainee, Omar Khadr, on technical grounds, has broad implications for the Bush Administration's system of military tribunals because the technicality appears to apply to all 385 prisoners held at Guántanamo.

A single word added by Congress to define detainees eligible for military tribunals could end up resulting in those cases being tossed, based on the ruling Monday of a U.S. military judge in the case of a Canadian detainee at Guantanamo Bay, Cuba.

In a matter of minutes, Army Col. Peter Brownback ruled that charges against Khadr, who is accused of committing murder in violation of the law of war among other charges, must be dropped because he was not properly classified as an "unlawful enemy combatant" after being interred at Guantanamo and charged in 2004.

In 2006, President Bush signed into law the Military Commissions Act after the Supreme Court threw out the previous war-crimes trial system. The act states that only those classified as "unlawful enemy combatants" can face military commission trials on Guantanamo.

But none of the detainees have been defined as "unlawful" enemy combatants, just "enemy combatants." Prosecutors argued that Khadr qualified as unlawful because he fought for Al Qaeda and was not part of any regular, national army.

The American Civil Liberties Union on Monday said the ruling shows the military commission process is "fundamentally flawed."

"It is long past time that war crimes trials are shifted to ordinary courts martial or civilian courts. The civilian courts in the United States have dealt successfully with terrorism prosecutions over the last five years," Jameel Jaffer, director of the ACLU's National Security Project, said in a statement.

"It's not a technicality. It's another demonstration that the system simply doesn't work," said the tribunal's chief defence counsel, Marine Col. Dwight Sullivan. "Fundamentally it is a system of justice that does not comport with American values."

The judge said a military review board had labelled Khadr an "enemy combatant" during a 2004 hearing in Guantanamo. But the Military Commissions Act adopted by the US Congress in 2006 said only "unlawful enemy combatants" could be tried in the Guantanamo tribunals.

Brownback said Khadr did not meet that strict definition because there had been no formal proceeding designating him as unlawful.

Because none of the 380 foreign captives held at Guantanamo have been designated in that way, lawyers said they could not be tried unless they first faced proceedings reclassifying them as unlawful enemy combatants.

Brownback dismissed the charges against Khadr, but left open the possibility that charges could be re-filed if Khadr went back before a review board and was formally reclassified.

A U.S. military commission in Cuba will charge Omar Khadr, the lone Canadian prisoner held at Guantanamo Bay, with murder and terrorism Monday morning.

The Ottawa-born 20-year-old is accused of killing an American medic five years ago as U.S. marines fought against al-Qaeda militants in Afghanistan.

While U.S. military prosecutors will seek to portray Khadr as a ruthless al-Qaeda terrorist who murdered a marine medic tending to the wounded, Khadr's Canadian defence team has argued he should be treated with more leniency because he was a child soldier.

Khadr was 15 at the time when he allegedly threw the grenade that fatally injured Sgt. First Class Christopher J. Speer, sending shrapnel through the soldier's skull.