Appeals Court Rules Military Judge Has Jurisdiction Authority in Gitmo Cases

By Sgt. Sara Wood, USA
American Forces Press Service

Sept. 25, 2007 - A military appeals court ruled yesterday that a military trial judge has the authority to determine jurisdiction in a military commission, a ruling that paves the way for proceedings to continue against suspected terrorists at U.S. Naval Station Guantanamo Bay, Cuba. The Court of Military Commission Review made the ruling in response to an appeal filed by the prosecution in the case of Canadian detainee Omar Khadr, who was charged in April with murder, support to terrorism and conspiracy under the Military Commissions Act of 2006. On June 4, the military trial judge in Khadr's case dismissed the charges against Khadr, ruling that the trial court did not have jurisdiction to hear the case.

This ruling was based on the fact that Khadr was officially classified as an "enemy combatant" in an administrative hearing at Guantanamo, and the Military Commissions Act requires detainees to be classified as "alien unlawful enemy combatants" before they can be tried by a commission. At the time, the judge also ruled that it wasn't the military commission's role to determine jurisdiction in these cases, even if the prosecution could present evidence showing the accused was an unlawful enemy combatant.

On June 8, the government filed a motion for reconsideration, which the trial judge denied on June 29. So, on July 4, the prosecution filed an appeal with the Court of Military Commission Review challenging the judge's dismissal of the case.

Air Force Brig. Gen. Thomas W. Hartmann, the legal advisor to the Office of Military Commissions Convening Authority, said yesterday's ruling gives the military judge authority to ascertain whether jurisdiction exists to try Khadr.

"Both the prosecution and defense have been vigorously preparing for this day, whatever the outcome," Hartmann said. "We have a ruling from the (Court of Military Commissions Review) that tells us how the military judge can determine jurisdiction. Now it is time to move forward."

Hartmann said he expects the prosecution to quickly begin forwarding cases to the convening authority for review. The convening authority will determine whether there is probable cause to send these cases to trial.

In Khadr's case, the military trial judge will now decide when the parties will return to trial in Guantanamo. Khadr, a 20-year-old Canadian citizen, was charged with murder in connection with the death of Army Sgt. 1st Class Christopher Speer in Afghanistan in 2002, attempted murder, material support for terrorism, conspiracy and spying.