A special appeals court has refused to reconsider its decision to allow a Canadian detainee at Guantanamo Bay to be prosecuted by a military tribunal at the U.S. naval base. Lawyers for Omar Khadr had asked the Court of Military Commissions Review to reconsider its first ever ruling, of September 24, which found that Khadr could be prosecuted by a military commission at Guantanamo. The court ruled that military judge Colonel Peter Brownback, who presided over the military commission that was supposed to hear Khadr's case, had erred in finding he had no jurisdiction over the alleged Al Qaeda member. Brownback made that decision in June, when he dismissed all charges against Khadr and said he could not hear the case because the detainee did not meet the standard for trial by a military commission. Brownback said the legislation that empowered the military commissions to hear cases required that detainees be designated “unlawful enemy combatants” by a review panel prior to appearing in court. But Khadr and the other detainees at the base have all been designated “enemy combatants,” a category Brownback said was broader and vaguer. The Court of Military Commissions Review agreed with Brownback that Khadr's classification as an "enemy combatant" by a military tribunal at Guantanamo failed to meet the requirements for jurisdiction set forth in the Military Commission Act of 2006. But it said Brownback should not have refused to himself determine whether Khadr met the requirements to be designated an “unlawful enemy combatant.” The case is now scheduled to reopen at Guantanamo on November 8, with Brownback potentially hearing evidence on whether Khadr meets the standard of “unlawful enemy combatant” before the case begins in full.
