MADELEINE BRAND, host:
A surprise decision at Guantanamo Bay today. A military judge there dismissed war crimes charges against a young Canadian detainee. Omar Khadr was 15 years old when he was captured. He's 20 now. He would have been the first child fighter in decades to be tried for war crimes. Khadr is accused of killing a U.S. soldier in Afghanistan.
NPR's national security correspondent Jackie Northam was at today's hearing in Guantanamo. And Jackie, this was unexpected. What happened today?
JACKIE NORTHAM: Well, it certainly was unexpected. I must say, these trials are never short on surprises, but this one was a whopper. You know, they - Omar Khadr came into court and he was supposed to have a pretrial hearing, and within an hour the case collapsed and it was dismissed, and court was adjourned.
Essentially, just very briefly, about three years ago, the administration, the Bush administration decided that every detainee here at Guantanamo must go through something called a Combatant Status Review Tribunal, or a CSRT. And essentially what that does is that establishes that the detainee is a so-called enemy combatant. And if they are, that meant the government could hold them down here indefinitely - they could try them, they could not try them.
And so they were called an enemy combatant. And Omar Khadr went through that and he was determined an enemy combatant. Last year in October, the Republican-led Congress wrote up something called the Military Commissions Act. And it was really a set of rules as to how these trials were to suppose to run and that type of thing. In that act it said that in order to charge somebody - bring one of the detainees to trial - they must be called an unlawful enemy combatant. So that one word, unlawful, was enough to get Khadr's case dismissed today.
BRAND: So is it just a semantic difference and will prosecutors re-file the charges?
NORTHAM: No, it's more than that. Actually, because what they are going to have to do, the lead defense attorney came in and said one of the things that they'll probably have to do is go back and re-write the rules for these CSRTs, the process that determines enemy combatants so it allows the term unlawful to be written into that. In other words, they're going to have to go back in try almost 400 detainees again before any of these trials can move on. So it's a huge process. You know, it's a small thing, but it's absolutely critical to the whole process of these tribunals. And until it's sorted out, they're not going anywhere.
BRAND: So that means Omar Khadr just stays there for a while?
NORTHAM: Well, he was not certainly not going to get out just because his case has been dismissed. No - he's definitely going to stay here, and his lawyer obviously is still going to work with him. It came out today with his lawyers, he has not - he's dismissed all his American attorneys, both civilian and military, and it turns out that the one that was sitting at the defense table today, by the rules of this process, had never talked to him. So that was - if this whole thing about unlawful combatants didn't come up, then certainly the whole idea about who can represent him would have, and that would have been enough to probably really slow down this trial as well.
BRAND: Jackie, the trial of another detainee, Saleem Ahmed Hamdan, that was Osama bin Laden's driver, that was supposed to start today. Will that go ahead now?
NORTHAM: It's supposed to start in a few hours time this afternoon. And you know, if his defense attorney's worth his weight in salt, I think he's going to bring up the same issue that dismissed this trial today. It is due to go ahead absolutely, but if it lasts an hour I think we'll all be pretty much surprised.
BRAND: NPR's Jackie Northam at Guantanamo. Thank you.
NORTHAM: Thank you very much.
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