The charges against two Gitmo detainees, which the Bush administration was finally planning to bring to trial, were thrown out entirely yesterday. Canadian Omar Khadr and Yemeni national Salim Ahmed Hamdan both had their cases dismissed in back-to-back arraignments.

In his decision, Colonel Peter Brownback said the Pentagon had merely designated Khadr, who has been held since he was 15 on charges of murder and terrorism (pictured left), as an “enemy combatant”, not an “unlawful enemy combatant”. The latter term was used by Congress last year in authorizing the tribunals. The fact that the tribunal has failed to establish proper jurisdiction may have broad implications since the technicality appears to apply to all 385 prisoners in Gitmo. “A person has a right to be tried only by a court that has jurisdiction over him,” Colonel Brownback told the court.

Likewise, Salim Ahmed Hamdan’s case was dismissed as US Navy captain Keith Allred said the alleged chauffeur and bodyguard to Bin Laden was not subject to the commission under legislation passed by Congress and signed by President Bush. The new Military Commissions Act was written after the Supreme Court ruled last year that the previous version was unconstitutional.

Mr Hamdan last year won a US supreme court challenge that led to the scrapping of the first Guantánamo tribunal system.

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…

…Yesterday’s ruling does not bring Mr Khadr any closer to freedom. Col Brownback threw out the charges “without prejudice”, which means the Pentagon could issue new charges against him.

However, it exposes the hastiness with which Congress moved in October to bring in legislation authorizing the tribunals after the supreme court threw out the earlier version.

“The system right now should just stop,” Marine Corps Colonel Dwight Sullivan, the lead military defense lawyer, said. “The commission is an experiment that failed and we don’t need any more evidence that it is a failure.” The cases against the majority of detainees would never hold up in a legitimate court of law due to lack of evidence. So rather than use the system we have, Gitmo detainees will be held even longer as a new system of “justice” is invented to render a guilty verdict.

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