By Anthony Dworkin

The saga of the U.S. Defense Department's attempts to construct a workable system of military tribunals to try terrorist suspects at Guantanamo Bay continues, with the two ongoing trials being abruptly stopped by their presiding officers.  In the latest setback to the commission process, the military judge in the trial of the Canadian detainee Omar Khadr halted proceedings on the first day after finding that the tribunal did not have jurisdiction over the defendant, because he had not been properly determined to be an "unlawful enemy combatant."  The judge overseeing the other current trial followed suit shortly afterward.

The judges' decision is based on a provision of the 2006 Military Commissions Act, the measure passed by the U.S. Congress to reinstate the military commissions after they were struck down, in their initial configuration, by the U.S. Supreme Court in the Hamdan decision.  According to the Military Commissions Act, the commissions have jurisdiction to try offenses committed by "an alien unlawful enemy combatant," but they do not have jurisdiction over lawful enemy combatants, who must instead be tried by court-martial under the Uniform Code of Military Justice.

The distinction between lawful and unlawful fighters goes back to a fundamental aspect of the laws of war.  Under the law, only certain designated individuals have the right to participate in an international armed conflict.  These individuals are either members of the regular armed forces, or members of associated militia groups who fulfill the criteria of being under responsible command, wearing uniforms or emblems that identify them as fighters, carrying their weapons openly and fighting in accordance with the laws of war.  Fighters who meet these conditions have "combatant status," meaning that they are entitled to attack enemy soldiers without committing a crime, and must be held as prisoners of war if captured.  In the language of the Military Commissions Act, they are "lawful combatants."

"Unlawful combatants" by contrast are those who join in fighting without having a legal entitlement to do so.  In an international armed conflict, that generally includes members of armed groups who do not meet the conditions listed above, as well as civilians who join in fighting opportunistically. (In non-international or internal conflict, there is no such thing as combatant status, since international law does not give insurgent groups the right to take up arms against national governments.)

All detainees now held at Guantanamo have now been through a preliminary hearing process known as a Combatant Status Review Tribunal (CSRT).  This process was itself set up in response to a previous Supreme Court ruling, and is designed to establish that all detainees were indeed taking part in hostilities against the United States and are therefore legitimately subject to being detained.  However the CSRT hearings did not rule on whether the detainees were "lawful" or "unlawful" combatants.

For this reason, the military judges at Guantanamo ruled yesterday, the defendants before the military tribunals have not been properly categorized as individuals over whom the tribunals have jurisdiction. The implication of the decisions is that the Pentagon must convene a new round of preliminary hearings to establish that the defendants are indeed "unlawful combatants" and then the cases against them before the military commissions can be restarted.  It is also possible that the U.S. government will be able to have the judges' decisions overturned on appeal, though the appeals court for the military commissions has not yet been set up.

Viewed in one way, the judges' decisions to drop the charges in these cases could be seen as based on a technicality.  Moreover, some early commentaries on the judges' decisions has criticized them for assuming that only CSRTs could properly designate detainees as unlawful combatants--rather than assuming that the tribunals could make that factual determination themselves.

However the rulings are a further embarrassment to the adminstration's military commission process, which has not completed a single contested trial in the five and a half years since the tribunals were first announced.  Moreover the decision by military judges to throw out these cases may indicate a continuing disquiet in the military law community about the commissions and the rules governing the classification of detainees.  A number of military lawyers have argued from the start that all detainees captured in Afghanistan should have had hearings to determine whether they were legitimate combatants entitled to prisoner of war status; instead President Bush declared that none of the detainees were eligible for prisoner of war status, since they belonged to forces that did not respect the laws of war, and that all should be classed as "unlawful combatants" without the need for individualized determinations.

Related Chapters from Crimes of War: What the Public Should Know:

Terrorism

Related Links:

Military Commissions Home Page

U.S. Department of Defense

The U.S. v. Omar Ahmed Khadr

National Institute of Military Justice

The U.S. v. Salim Ahmed Hamdan

National Institute of Military Justice

Back to Top