Prosecutors seek start of war crimes trials
on Jun 12, 2007 at 11:20 am
Military prosecutors have asked two military judges at Guantanamo Bay, Cuba, to reconsider rulings last week and thus clear the way for the start of war crimes trials of two prisoners before “military commissions.” In motions filed Friday in Guantanamo and now available, the prosecutors argued that the military judges themselves — acting as presiding officers of commissions — have the authority to decide that their tribunal has jurisdiction and may proceed.
The prosecutrors also contended that there is no need for the military to re-do the proceedings of “Combatant Status Review Tribunals” at Guantanamo in order to have it clear that the two individuals charged with war crimes — Omar Ahmed Khadr and Salim Ahmed Hamdan — are “unlawful enemy combatants” who can be tried. Past CSRT findings that they were “enemy combatants” is enough to show they fit the “unlawful” category, the motions contended. It is not even necessary, they added, for there to be any CSRT review before an individual can be designated an “unlawful enemy combatant.” That can be shown merely by facts that satisfy the definition of unlawfulness spelled out in the Military Commissions Act of 2006, the motions argued.
The motion to reconsider in the Khadr case can be found here. The motion in the Hamdan case is here.
In closely parallel rulings on June 4, Army Col. Peter E. Brownback III and Navy Capt. Keith Allred, judges of commissions at the U.S. military prison camp at the Cuba base, dismissed all charges against Khadr and Hamdan. The judges ruled that commissions only have jurisdiction to try “unlawful enemy combatants,” and CSRTs had only found each of them to be an “enemy combatant.” The difference is crucial for purposes of commission jursdiction, Brownback and Allred declared.
The prosecutors directly disputed those conclusions in seeking reconsideration. They also indicated that, if the judges do not re-think their orders, the Pentagon will then consider whether to appeal — a decision that may be complicated by the fact that the court of review to hear appeals in commission cases has not yet been appointed. The motions did not mention that fact, indicating only that it would be “premature” to consider the option of an appeal until after pursuing reconsideration.
In arguing for a new look at the combatant status issue, the prosecutors’ motions argued that the judges’ dismissal of all charges against Khadr and Hamdan upset “the careful and comprehensive system for military commissions established by Congress and must be corrected.” The two motions differed in some detail, because Capt. Allred had issued a subsequent order in Hamdan’s case to indicate that he had not ruled on whether he had authority to decide the jurisdictional issue himself. The prosecutors’ Hamdan motion thus asked the judge to hold an evidentiary hearing, so it could provide the facts that it believes fully support a finding that Hamdan is an “unlawful” combatant subject to trial now.
Both motions argued that there are two ways that “unlawful enemy combatant” status may be determined in order to establish that a given prisoner is subject to a war crimes trial. First, there can be a finding by a CSRT (whether or not the finding was made before the MCA was enacted in 2006, or after), and, second, there can be a finding by the commission itself — through the presiding judge — of unlawful combatant status providing jurisdiction.
Judge Brownback in the Khadr case only focused on the CSRT alternative, and found it wanting because of a lack of a specific finding of unlawfulness, the prosecutors pointed out. They asked that he reconsider that aspect of his ruling, as well as overturn his second finding that the commission had no authority to find jurisdiction apart from the CSRT process.
Judge Allred also found fault in the Hamdan case with the CSRT altnernative was not a proper basis for jurisdiction because there was no finding of “unlawfulness.” But he noted that neither side in the case had asked him to hear evidence and decide himself that the commission had jurisdiction. The motion asked him to reconsider on the CSRT point, and to hear evidence on his own authority to make the jurisdictional finding.
In making its arguments about the CSRT alternative, the prosecution in both cases said that the commission authority under the MCA is not limited to detainees at Guantanamo who have had CSRT hearings. If the judge finds that an accused meets the definition of “unlawful enemy combatant” found in the MCA itself, that provides jurisdiction, according to the motions.
The motions also said that Congress, in passing MCA last year, had understood that findings of combatant status by CSRTs before the MCA was enacted would satisfy the need to show that a combatant’s status was unlawful. Any prior CSRT determination of combatant status should suffice, and so there is no need to stage a new CSRT proceeding to decide whether a given prisoner facing war crimes prosecution is an “unlawful” combatant, the motions asserted. (The Pentagon has held at least 558 CSRT proceedings at Guantanamo, but it is unclear whether the dispute over war crimes commission jurisdiction affects any but those prisoners confronting war crimes charges.)
While Khadr and Hamdan are the only two Guantanamo prisoners who as of now are facing war crimes prosecution, the Pentagon has indicated that as many as 80 of the Guantanamo prisoners may ultimately be charged.
