Update: Judge Brownback's 3-page written ruling is now posted on NIMJ's site here. The key passages are paragraphs 6 and 7, in which Judge Brownback states his view that "it is clear that the MCA contemplates a two-part system," and more specifically that the MCA requires the determination of the jurisdictional fact (unlawful combatancy) to be made by the CSRT. The opinion does not address the potential impact on the analysis of the first clause of section 948a(1), discussed below. One final note -- Tony Arend (Georgetown) has elaborated on the initial version of this post, making several excellent points here.
Second update: see here for the latest developments, including a convincing response to one of the criticisms I provide below.
An unexpected development at today’s arraignment of Omar Khadr, a Guantanamo detainee charged with war crimes before a military commission: the judge dismissed the charges for want of jurisdiction. The judge explained that:
(i) The Military Commissions Act (MCA) expressly vests the tribunal with jurisdiction only over those who have been found to be “alien unlawful enemy combatants”; and
(ii) Khadr (like all other detainees who have gone through the Combatant Status Review Tribunal process) was merely determined to be an “enemy combatant.”
I’ll offer an off-the-cuff reaction to this, qualified by the fact that I’m not yet privy to details of the ruling beyond what the Times is reporting this afternoon.
The problem identified by Judge Brownback concerns § 3(a)(1) of the MCA, which creates 10 U.S.C. § 948c (“Any alien unlawful enemy combatant is subject to trial by military commission under this chapter.”) and § 948d(a) (“Jurisdiction.—A military commission under this chapter shall have jurisdiction to try any offense made punishable by this chapter or the law of war when committed by an alien unlawful enemy combatant before, on, or after September 11, 2001.”).
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. (See the CSRT procedures for an overview). And that’s an accurate description of the CSRT’s outcome. But it does not necessarily follow that the Commission lacks jurisdiction. I suspect that prosecutors will argue that the CSRT determination nonetheless satisfies § 948a(1)’s first clause, highlighted in bold above. Here is the likely argument:
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
All of this is, of course, without respect to the many other legal and policy questions that surround the CSRT and commission processes. In any event, an appeal will follow, though it is not clear that the appellate structure contemplated by the Act is yet in place. Should the ruling hold up, however, it would seem that commission proceedings will have to be suspended until a revised CSRT predicate determination can be made. Presumably this would take at least a month or so (a new CSRT order may be needed, followed by the CSRT itself), though I suspect the bulk of delay will stem from the structuring and then using the appellate process itself. Anyone know where the Court of Military Commission Review currently is in its stand-up process?
I'm happy to be corrected if the analysis described above overlooks or misunderstands this specific issue, of course.
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