Peter Brownback

In the Summer of 2006 the United States Supreme Court overturned the then current version of the Guantanamo military commission on constitutional grounds.[4] The Supreme Court had ruled that, under the separation of powers, the Bush Presidency lacked the constitutional authority to institute military commissions. The Supreme Court however, did rule that the United States Congress did have the constitutional authority to legislate such military commissions.

In the fall of 2006 the Congress passed the Military Commissions Act, which authorized military commissions similar to those the Supreme Court overturned, to try "unlawful enemy combatants".[4] Brownback and Captain Keith J. Allred, ruled that, since Khadr and Salim Ahmed Hamdan's Combatant Status Review Tribunals had not determined that they were "unlawful enemy combatants", but merely "enemy combatants", the commissions lacked jurisdiction to try them.[4][5] On June 4, 2007, in a move the BBC described as a "stunning blow" to the Bush Presidency's detainee policy, Brownback dismissed all charges against Canadian youth Omar Khadr.[4] By June 2007, none of the Guantanamo captives had had a "competent tribunal", such as the AR-190-8 Tribunal, determine whether they broke any of the laws of war that would result in stripping them of the protections of Geneva Conventions Prisoner of War status.[4]

An appeal court determined that the Presidents of Military Commissions had the authority to determine whether the captives were lawful combatants.[6][7] Brownback reconvened Khadr's proceedings on Thursday, November 8, 2007. Before Brownback determined whether Khadr was an unlawful combatant, lawyers were allowed to challenge the official as to whether he was an appropriate person to sit as Khadr's judge. Brownback postponed ruling on Khadr's combatant status, giving attorneys more time for preparation.[8] The next two sessions were scheduled for December 7, 2007 and January 13, 2008.

Brownback chastised the prosecution[9] telling them "they had to provide Khadr's defence lawyers with records of his confinement at the detention camp in Guantanamo Bay, Cuba, or he would suspend the proceedings."[10] On May 29, 2008 the military suddenly announced that a new officer was appointed to replace Brownback as judge in the Khadr case. Reuters noted that "The dismissal came on the same day that Pentagon prosecutors filed new charges against three other Guantanamo prisoners and defense lawyers accused the prosecutors of trying to rush cases to trial before the November U.S. presidential election."[11][12][13][14]