The Khadr and Hamdan Ruling: A Few More Reflections
Jun-5-07 07:36 pm
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.)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.
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