The Pentagon official in charge of military commissions at the naval base at Guant?namo Bay, Cuba, dismissed war crimes charges on Tuesday against five detainees, the latest challenge for the Bush administration?s long-troubled system for prosecuting detainees at the base.
All five of the cases had been handled by a prosecutor who stepped down in September, saying there were systemic problems with the fairness of the military prosecutions there.
The dismissed charges included those against a detainee accused of plotting to detonate a radioactive ?dirty bomb? inside the United States, accusations that drew international attention in 2002. The dismissal was a retreat by the government facing an aggressive defense in the case.
It came in the same week that administration lawyers changed course in another highly publicized terrorism case, abandoning efforts to prove that six other Guant?namo detainees took part in a 2001 plan to bomb the United States Embassy in Sarajevo, Bosnia-Herzegovina. The moves appeared to be fresh indications of a long pattern of the administration?s making sharp changes in its legal strategy as it encounters resistance to its detention policies.
The chief military prosecutor, Col. Lawrence J. Morris, portrayed the dismissals as unexceptional. Colonel Morris said he had asked for the dismissals so the files of the former prosecutor, Lt. Col. Darrel Vandeveld, could be reviewed.
?We have plenty of evidence to convict all of them,? Colonel Morris said, indicating that he would refile charges.
None of the detainees were to be released.
The best known of the five men whose charges were dismissed Tuesday is Binyam Mohamed, a former British resident accused in the ?dirty bomb? case. He has claimed he was tortured while in American custody or in countries to which he said the United States sent him. His lawyers argued Tuesday that the government was trying to avoid having to answer his accusations.
?They have been cornered into doing this to avoid admitting torture,? said Clare Algar, the executive director of Reprieve, a legal organization that represents Mr. Mohamed.
The Pentagon?s decision to dismiss the cases comes after the former prosecutor, Colonel Vandeveld, said in a military commission filing that he had ethics questions about prosecution procedures for notifying the defense about information favorable to detainees. He called the procedures ?appalling? and ?incomplete and unreliable.?
Colonel Morris said it was better to review cases ?than the opposite, which is show yourself to be so pigheaded that you would stick to the way you originally charged a case? instead of re-evaluating it.
Colonel Vandeveld did not respond Tuesday to a message seeking comment.
Colonel Morris said that in many Guant?namo cases in which there are accusations of torture, there is adequate evidence to win a conviction.
For several years, the Bush administration has shifted its legal approach at pivotal moments in legal confrontations over its detention policy ? transferring detainees on the eve of hearings and abandoning legal arguments.
?Every time they get near a court they try and figure out a way to avoid court review or evade a decision that has come down,? said Michael Ratner, the president of the Center for Constitutional Rights, which has coordinated detainees? cases.
Dean Boyd, a spokesman for the Justice Department, declined to comment on those accusations, but said ?there are unique considerations in each proceeding that govern the information that the government may choose to rely upon.?
The apparent dirty bomb plot first came to light in a 2002 public announcement made by the attorney general, John Ashcroft. Mr. Ashcroft announced the detention of Jose Padilla, who was subsequently held for three and a half years in a naval brig in South Carolina on suspicion of being involved in that plot. After years of legal fights, the Justice Department changed course and obtained a conviction in 2007 in a federal court trial on other charges.
Government officials said Mr. Mohamed had worked with Mr. Padilla and studied how to construct a nuclear device and detonate it with C-4 explosives.
Before the Pentagon announced the dismissal of the military commission charges, the Justice Department in a separate case involving Mr. Mohamed said for the first time last week that it would not try to prove accusations it had made for years about his involvement in the dirty bomb plot. That filing came in a federal habeas corpus case challenging to his detention at Guant?namo.
The other detainees whose charges were dismissed Tuesday were: Noor Uthman Muhammed, Sufyiam Barhoumi, Ghassan Abdullah al-Sharbi and Jabran Said bin al-Qahtani. The Pentagon has suggested that they were part of a terrorism cell.
Also on Tuesday, the Justice Department changed course in another Guant?namo case, this one involving six Algerian detainees who had been living in Bosnia when they were turned over to American forces in 2002.
In military hearings over the years, the Pentagon had argued that the men were tied to a Sarajevo embassy bomb plot, although a court in Bosnia said at the time that there was not enough evidence to hold the men.
The men were at the center of a landmark Supreme Court ruling in June that said Guant?namo detainees have a constitutional right to contest their detention in federal habeas corpus suits. That ruling, Boumediene v. Bush, was named for one of the men, Lakhdar Boumediene.
The case of the six men is now scheduled for a hearing in Federal District Court in Washington as soon as next week. Those hearings are to be the first in which the administration is to provide a court with a full explanation of its reasons for holding detainees.
In a cryptic filing made public on Tuesday, the Justice Department said that in a classified filing it had withdrawn ?reliance on certain assertions.?
Robert C. Kirsch, a lawyer for the six men, said he could not discuss the classified filing. But he said that in an unclassified conversation, Justice Department lawyers had told him that after more than six years, the government did not plan to introduce any evidence about the embassy bomb plot.
?The government,? Mr. Kirsch said, ?is finally being forced to look at whether it has or does not have evidence to justify holding these men.?
Re: SER: Prosecutor drops charges against Guantanamo detainees