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The Khadr and Hamdan Ruling: A Few More Reflections
Jun-5-07 07:36 pm
Image:Bush signing Military Commissions Act of 2006.jpg
Signing the Military Commission Act of 2006

In reflecting more upon the rulings in Khadr and Hamdan, I am struck by a problem inherent in the concept of "unlawful enemy combatant." While I realize that there was much discussion about this concept when it was initially used by the Administration, the recent rulings seem to magnify the problem. Both military judges concluded that the military commission lacked jurisdiction over the defendants because the Combatant Status Review Tribunals determined only that the persons were "enemy combatants" and not "unlawful enemy combatants."  In discussing the Khadr case, Marty Lederman notes:
What I think the judge was getting at, however, was a more functional, structural reading of the MCA. In a case such as Khadr, because of the sorts of charges brought against the defendant, a preliminary finding of unlawful belligerent status would be virtually equivalent to a finding that the defendant is guilty of the war crimes as charged. This is so because the principal charges against Khadr are that he engaged in combat in Afghanistan -- such as setting land mines, shooting Afghan milita members, and throwing a grenade that killed a U.S. Sergeant -- "without enjoying combat immunity." (The charges themselves are framed as murder, "conspiracy," provision of "material support" for terrorism (Khadr's own services in battle) and spying.)

The charging document does not specify why Khadr did not "enjoy combat immunity" the way that most soldiers do -- that is, why his combat activities amounted to war crimes. I imagine the allegations will be that Khadr performed such activities while failing to wear a uniform or insignia and/or while failing to carry his arms openly (as well as collecting intelligence "by clandestine means or while acting under false pretenses"). If these facts could be proved, they might establish violations of the laws of armed conflict (putting aside the question of whether "conspiracy" and "material support for terrorism" of the sort alleged here are fairly viewed as war crimes that can be tried by military commission).

But those facts are precisely those that would be necessary to establish that Khadr is an "unlawful" enemy combatant in the first instance, and thus subject to commission jurisdiction. Judge Brownback quite understandably assumed that Congress did not intend for the military commission itself to make such a preliminary adjudication, simply in order to provide itself with the jurisdiction to convene a trial to address the very same questions under more elaborate and more protective evidentiary and procedural rules.

Instead, Judge Brownback in effect reads the MCA to require that before a defendant can be convicted of a war crime, two different tribunals must determine that his combatancy was unlawful.
Marty's analysis makes sense. And that is the problem. In what other legal system would there be some preliminary tribunal to decide that the defendant has a status that involved the term "unlawful," and then a second tribunal to rule on the lawfulness of the person's acts? It would almost be as though a grand jury would pronounce the defendant a "criminal" and then a petit jury would try the criminal.

I guess at some level the problem could have be mitigated if the term "unlawful combatant" were reserved for persons that had been convicted by a military commission and not used as a description of their status. It seems to me that the CSRT should determine whether the persons is a "privileged combatant"--  one meeting the requirements of Article 4 of the Geneva Convention-- or an "unprivileged combatant"-- one not meeting the requirements of Article 4.  Then, the military commission could try unprivileged combatants who were being charged with violations.

About the editor:

Anthony Clark Arend


Commentary and analysis at the intersection of international law and politics.

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» Learn more about the M.A. in International Law and Government at Georgetown University.

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