Whoops. Gitmo Military Judges Throw Out Cases, Saying Court Has No Jurisdiction

Brian Zick

Andrew Selsky for AP reports: 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 U.S. soldier in Afghanistan, throwing up roadblocks to the Bush administration's attempt to try terror suspects in military courts.In back-to-back arraignments for Salim Ahmed Hamdan of Yemen and Canadian Omar Khadr the U.S. military's cases against the alleged al-Qaida figures dissolved because, the two judges said, the government had failed to establish jurisdiction.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 U.S. 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. (…) Prosecuting attorneys in both cases indicated they would appeal the dismissals. But the court designated to hear the appeals — known as the court of military commissions review — doesn't even exist yet, Sullivan noted. Analysis from Jack Balkin here and from Marty Lederman here.

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