Guantánamo trials in chaos after judge throws out two cases

Guantanamo will define Bush's presidency as much as the Iraq war and - judging by yesterday's decision by military judges to throw out all charges against one detainee and dismissing charges against another detainee who chauffeured Osama bin Laden - the verdict against the Bush administration will be a damning one.

For five years the Bush administration have sought to keep the captives in Guantanamo away from American courts and insisting - after losing a case at the Supreme Court - that the prisoners at Guantanamo would be dealt with by a series of military tribunals.

However, yesterday that system was thrown into chaos.

In back-to-back arraignments for the Canadian Omar Khadr and Salim Ahmed Hamdan, a Yemeni national, the US military's cases against the alleged al-Qaida figures were dismissed because, the judges said, the government had failed to establish jurisdiction.

Yesterday's decision by Colonel Peter Brownback to dismiss all charges against Mr 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 Guantánamo.

The dismissal of the case also undermines the administration's efforts to show that the military tribunals are based on sound legal practice and can provide detainees with a fair hearing, detainee lawyers said.

In his decision yesterday, Col Brownback said the Pentagon had merely designated Mr Khadr, a Canadian citizen facing charges of murder and terrorism, as an "enemy combatant", not an "unlawful enemy combatant", the term used by Congress last year in authorising the tribunals.

The Pentagon's lapse meant the tribunal did not have proper jurisdiction to try Mr Khadr. "A person has a right to be tried only by a court that has jurisdiction over him," Col Brownback told the court.

Mr Hamdan is accused of being Bin Laden's chauffeur and bodyguard. In his case, US Navy captain Keith Allred yesterday said Mr Hamdan is "not subject to this commission" under legislation passed by Congress and signed by President George Bush last year.

The term "unlawful enemy combatant" does not appear anywhere in the Geneva Conventions and has led many of us to believe that the Bush administration have been making up their response to these men as they have been going along.

Now, with this latest ruling, it appears as if - under the system they have cobbled together to avoid bringing these men before American courts - they have buggered this to such an extent that they may have no case against these men at all.

Yesterday's rulings also suggest that none of the 385 other detainees at Guantánamo, held for more than five years without charge, can be brought to trial before the tribunals because they too have been designated merely as "enemy combatants", lawyers said yesterday.

"The system right now should just stop," Marine Corps Colonel Dwight Sullivan, the lead military defence lawyer, said. "The commission is an experiment that failed and we don't need any more evidence that it is a failure."

It's simply astonishing to see the whole system that Rumsfeld and Bush cobbled together fall apart so spectacularly, leaving the US with virtually no case against these men who we were told were "the worst of the worst".

Of course, as Col Brownback threw out the charges "without prejudice" then the government are free to issue new charges against the men, however any new charges will only increase the impression that the Bush administration are making this whole thing up as they go along.

They will now no doubt seek to have another set of "combat status review tribunals" in which they will attempt to redefine the men held as "illegal" enemy combatants but the damage is done.

They look like they are busking because they are busking. They are literally making this up as they go along. Nothing makes this clearer than the fact that the prosecutors have said that they will appeal to the court of military commissions review, a body which doesn't even (at this moment) exist.

Mr Khadr's defence team was equally scathing. "This is a shambles," said Kristine Huskey, who had been on Mr Khadr's defence team until last week when he sacked all of his American lawyers. "It's another example of how everything has been so ad hoc."

Ad hoc. A very polite way to say "making it up as they go along." It's a shambles, and it's a shambles that should define the shambles that was the Bush presidency.

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