BREAKING NEWS: Khadr Case Thrown Out

BREAKING NEWS: Khadr Case Thrown Out

Posted By Greg McNeal On June 4, 2007 @ 1:53 pm In Law Blog, Counterterrorism | 1 Comment

In a surprise for the government, a military judge in GTMO has thrown out the case against [1] Omar Khadr.  From [2] The Globe and Mail:

All charges against Canadian Omar Khadr were dismissed Monday by a U.S. military judge, who ruled that his tribunal had no jurisdiction to try the alleged terrorist because the government had failed to designate him an “unlawful enemy combatant.”

“Charges are dismissed without prejudice,” Colonel Peter Brownback said. Congress created the military tribunals to try only so-called “unlawful” enemy combatants. The military panel that ruled on Mr. Khadr’s status designated him only as an “enemy combatant” in 2004.

What does this mean?  Until the government puts the unlawful into their CSRT determinations, the charged detainees can’t be tried.  The MCA requires that those triable by military commission be unlawful enemy combatants (alien as well).  The CSRT determination as to Khadr (and all the other detainees) is that they are “enemy combatants” not “unlawful enemy combatants.” 

The root problem for the government is that the order from the Deputy Secretary of Defense does not provide a means for the CSRT’s to determine that a detainee is an “unlawful enemy combatant.”  According to the MC judge, until the CSRT determines he is an “unlawful enemy combatant” the MCA is inapplicable to Khadr and he cannot be tried by military commission.  It seems that those drafting the MCA and the CSRT order failed to ensure they were speaking the same language. 

At the hearing, one of the prosecutors Captain Keith Petty unsuccessfully attempted to remedy the legal problems highlighted by the judge, by arguing that “Omar Khadr clearly qualifies as an unlawful enemy combatant” and offering to show a video substantiating this fact.  The video would have shown Khadr in civilian clothes planting a roadside bomb in Afghanistan. 

Moving forward, it looks as though the government will need to redraft the Deputy Secretary of Defense CSRT order and reconvene CSRTs for every detainee they plan to try, unless the government can come up with a more creative solution. 

Again, I’m disappointed by how the military prosecutors got the shaft.  In Hicks the prosecution came ready for trial, only to find out that a deal was made at the Appointing Authority level without their knowledge.  This time poor drafting at the Deputy Sec Def level left the prosecution, again ready for trial only to find out that the MC system needs more tweaking.  Until those deficiencies are remedied, the prosecutors, victims, and detainees are thrown back into a holding pattern which could have been prevented.   


Bobby Chesney writes:

Well, what does it mean to be an unlawful enemy combatant under the MCA?  Section 948(a)(1) explains that an unlawful enemy combatant is either  

(1) “a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces)” or  

(2) “a person who . . . has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal [“CSRT”] or another competent tribunal . . . .” (§ 948(d) also states that a determination of unlawful combatancy by such tribunals are binding on a military commission).  

What, then, is the problem insofar as Khadr is concerned?  It’s hard to tell from the scanty press coverage so far, but I gather from the reporting that the judge objects to the fact that the CSRT procedure only determines “enemy combatant” status simpliciter, and does not expressly determine the lawfulness of the detainees belligerency.

* * *

[I]t does not necessarily follow that the Commission lacks jurisdiction. 

* * *
The definition of “enemy combatant” employed in the CSRT process is as follows: 

“An ‘enemy combatant’ for purposes of this order shall mean an individual who was part of or supporting Taliban or al Qaida forces, or associated forces that are engaged in hostilities against the United States or its coalition partners.  This includes any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces.” 

The question is whether it is possible to satisfy that definition—as a CSRT determined Khadr did—without also satisfying clause 1 of § 948a(1).  They aren’t identical, to be sure, but they certainly are very close.  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

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