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A military judge today allowed the controversial military commissions at Guantanamo Bay to go forward without hearing evidence as to whether or not Omar Khadr, a 21-year-old Canadian who has been in US custody for more than five years, met the definition of an “unlawful enemy combatant” as required by the Military Commissions Act of 2006, Human Rights Watch said today.

The judge, Colonel Peter Brownback, said he was moving forward on the presumption that Khadr met the definition, but left open the possibility that the defense could challenge the commission’s jurisdiction at a later date.

During the hearing, Khadr’s defense counsel challenged Brownback’s impartiality and questioned whether or not he was fit to preside over the case.

Responding to questioning from the defense, Brownback said that he did not think that the Supreme Court had declared the military commissions system illegal in its June 2006 decision in Hamdan v. Rumsfeld. In Hamdan, the Supreme Court held that because the Uniform Code of Military Justice provision on military commissions had not been complied with, “the rules specified for Hamdan’s trial are illegal.”

“The military commission’s obvious misreading of the Hamdan decision calls into question its understanding of the fundamental legal principles at stake,” said Jennifer Daskal, senior counterterrorism counsel at Human Rights Watch. “It’s shocking that the judge has misconstrued the most important Supreme Court decision about the very system he’s presiding over.”

Judge Brownback also indicated both in today’s answers and in prior orders that he will not consider challenges to the military commissions based on constitutional or international law.

When asked what law he would rely on in presiding over the commission he said he would only consider the Military Commissions Act and associated Department of Defense rules and orders.

“The key question going forward is the legitimacy of the system,” Daskal said. “Yet the judge’s comments suggest that he will prevent the defense from raising essential constitutional and international law issues.”

The court set dates for the defense to file motions, but has not decided when the next military commission hearing will be.

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