05 Jun Charges Dropped Against Omar Ahmed Khadr
05.06.07
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4 Comments
Check out Bobby Chesney’s take over at National Security Advisors. Bottom line: “Given that Khadr was determined by a CSRT to satisfy the “enemy combatant” definition, and given that comparable language is used in § 948a(1) to describe who counts as an unlawful enemy combatant, it would seem that there is a strong case to be made that the commission does in fact have jurisdiction.”
Tony Arend adds his thoughts here, concurring with Chesney’s analysis. And Marty Lederman at Balkinization adds, “This could mean the virtual cessation of military commissions for GTMO detainees, at least until the CSRTs are reconvened in order to make determinations that the detainees are unlawful enemy combatants.”
Military commissions are not prohibited from hearing evidence establishing jurisdiction over a defendant. Thus, I was disheartened to see that the Judge failed to consider moving forward by requiring the prosecution to present evidence to establish the judisdictional basis. (I’m assuming the Commission did not treat this as a deficient infictment issue – an issue resolved by filing an amended indictment.)
The Judge is correct that a determination of EC status is not a determination of unlawful EC status; unlawful EC status is not necessarily included within EC status and therein lies the cruz of the issue. The problem all along has been the use of the term “comba tant” as part of this phrase. Those familiar with EC status understand that the meaning of the word “combatant” is not the same as “combatant” as used in the GC and contemporary humanitarian law.
I don’t think this is a matter of military commissions’ capacity to consider such matters per se, but rather of the meaning of the ‘dispositive’ clause in the MCA as it relates to these particular military commissions.
Bobby Chesney has further thoughts in light of the Hamdan decision yesterday. See here for his analysis of the two decisions. He succinctly summarizes the problem as follows:
“Consider, for example, hypothetical defendants A and B. A provides cash to al Qaeda without any knowledge or intent as to how the money might be used. B provides an RBG, hoping it will be used to attack Coalition forces in Afghanistan. B would satisfy both definitions (providing suppport to the organization, and providing support to hostilities). A would satisfy the CSRT definition (support to al Qaeda), but A might or might not satisfy the MCA definition (support to hostilities).”
Very interesting.
While the MCA discussion is important, keep in mind that a key point is that the definition of unlawful enemy combatant does not track with the categories of Geneva III Article 4 so that persons who would be properly Geneva III Article 4 POW’s can be labeled unlawful enemy combatants. Similarly the definition for lawful enemy combatants is more restrictive than the Geneva III Article 4 definitions. So whatever the classification ultimately done under the MCA begs the question of Geneva compliance in the treatment of the specific individual concerned.
Best,
Ben