WASHINGTON -- The Defense Department said yesterday that it will ask two judges to reconsider their decisions from earlier this week that stalled the military's attempt to put detainees at Guantanamo Bay on trial.
Pentagon spokesman Bryan Whitman said the department is filing a motion with the judges to reconsider dismissing charges against two Guantanamo detainees, saying that the problem is largely semantics.
Military judges ruled Monday that the Pentagon could not prosecute Salim Ahmed Hamdan and Omar Khadr because they had not first been identified as "unlawful" enemy combatants, as required by a law enacted last year by Congress. Khadr and Hamdan previously had been identified by military panels here only as enemy combatants, lacking the critical "unlawful" designation.
Whitman called the issue a slight difference in terminology that should be settled quickly. He said the motion for reconsideration would be filed yesterday.
"There is no material difference between the term ' enemy combatant ' used by the combatant status review tribunal process and the term ' unlawful enemy combatant ' as utilized in the military commissions act, as it pertains to the individuals in question," said Whitman.
He said the department reviewed various options and decided to go back to the original two judges with a renewed legal argument.
Hamdan, of Yemen, is believed to have been chauffeur for Al Qaeda leader Osama bin Laden. Khadr is a Canadian who was arrested at 15 on an Afghan battlefield, accused of killing a US soldier.
The decision dealt a blow to the Bush administration in its efforts to begin prosecuting dozens of detainees it regards as the nation's most dangerous terrorist suspects.
The two detainees are the only ones currently in the roughly 380-prisoner population at Guantanamo who have been charged with crimes under a reconstituted military trial system.
One other detainee charged under the new system, Australian David Hicks, pleaded guilty in March to providing material support to Al Qaeda and is serving a nine-month sentence.
Last year, Republicans and the White House pushed through legislation authorizing the war-crimes trials at Guantanamo after the Supreme Court threw out President Bush's previous system as illegal and in violation of international treaties.
Bush established the specialized tribunal system shortly after the Sept. 11, 2001, attacks but had not been able to convict any terrorists because of legal hurdles.
By asking the two judges to reconsider their rulings, prosecutors can buy time to produce more compelling arguments against the dismissal of the charges, said Gregory McNeal, a law professor at Pennsylvania State University.
As a fallback, prosecutors can appeal. The Court of Military Commissions Review consists of at least three appellate military judges, said Navy Commander Jeffrey Gordon, a Pentagon spokesman.
The classifications of enemy combatants is important because if they were "lawful," they would be entitled to prisoner-of-war status under the Geneva Conventions.