A special military appeals court ruled on Monday that judges who preside over “military commissions” have the power to decide on their own who is an “unlawful enemy combatant” and thus can be tried on charges of war crimes. Deciding its first case in a way that gives the Pentagon a major — but not a complete — legal victory, a three-judge panel of the U.S. Court of Military Commission Review set the stage for a new review of the status of a 20-year-old Canadian, Omar Ahmed Khadr. If, as seems likely, a judge or a military commission concludes that he is an illegal combatant, that would revive charges that he killed a U.S. serviceman in Afghanistan fighting in 2002, along with other terrorism-related charges.

Khadr had been charged by the Pentagon in April 2007, some two years and nine months after he had been found to be an “enemy combatant” by a military panel — formally, a Combatant Status Review Tribunal. But, last June 4, a military judge in Guantanamo Bay, Cuba, where Khadr is being held, threw out all of the charges. The judge, Army Col. Peter E. Brownback, was the presiding officer of a military commission set up to try Khadr.

The judge found that the only individuals who can be tried before military commissions are those found to be “unlawful enemy combatants”; it was not enough, the judge concluded, for the CSRT to have found Khadr simply to be an “enemy combatant.” Moreover, the judge added, neither he nor the military commission itself could decide on their own that Khadr’s status was that of an “unlawful” combatant. Since the commission had no jurisdiction, Khadr could not be tried, according to the judge. (A second judge also threw out war crimes charges against a Yemeni national, Salim Ahmed Hamdan; the Pentagon has not appealed that ruling, but it is likely to be overturned on the basis of Monday’s decision by the CMCR.)

Judge Brownback’s main conclusion threatened the prospect that the military might have to conduct new CSRT proceedings, perhaps in more than 550 cases of Guantanamo prisoners.

But the Pentagon was spared any new round of review in the CSRTs by the CMCR conclusion that Judge Brownback did have jurisdiction to decide on Khadr’s status, and thus to proceed to try him. Its ruling came after an appeal filed by the Pentagon. Significantly, in other parts of its ruling (discussed below), the appeals court stripped the CSRTs of some of the authority that the Pentagon had claimed they had.

The ruling can be downloaded here. In a second decision released Monday, the CMCR concluded that its three members were validly appointed, so they had authority to decide the case. (That separate ruling is here.)

The Pentagon did not win on all points at issue, however. The appeals court rejected the Pentagon argument that there was no legal difference between a finding of an “enemy combatant” by a CSRT and an “unlawful enemy combatant.” The former can be captured and held during a conflict, but cannot be charged with crimes, it ruled. Only an “unlawful enemy combatant” may be charged, it concluded, citing “the well recognized body of customary international law.”

The appeals court also upheld Judge Brownback’s conclusion that the CSRT finding of “enemy combatant” was not sufficient to set up a trial before a commission. It thus rejected the Pentagon conclusion that prior statements by President Bush and other high officials were sufficient to turn anyone accused of ties to the Al Qaeda terrorist network or to the Taliban into an “unlawful enemy combatant.” Congress, in creating war crimes commissions in the Military Commissions Act of 2006, spoke clearly on the subject, CMCR concluded.


“Had Congress intended prior designations of detainees as mere ‘enemy combatants’ to be sufficient to establish military commission jurisdiction,” CMCR said, “it was fully capable of saying this in the legislation. It did not….Congress was clearly aware of the previously troubled military commission process” (struck down by the Supreme Court in 2006) and thus wanted to enact new, clear and unequivocal legislation.

Moreover, the appeals court said, Congress did not mean to validate all prior CSRT determinations so as to turn those into findings into unlawful status. And, it found, CSRTs were never given the task of finding detainees to be “unlawful enemy combatants.” Their only role, it said, was to give detainees a chance to challenge their designation as “enemy combatants.”

After ruling on those points, however, CMCR rejected Judge Brownback’s conclusion that neither he nor the commission could fill the gap that he and CMCR had found in the CSRT process.

It declared: “We hold the military judge erred in two respects: first, in not affording [the Pentagon] the opportunity to present evidence in support of its position on the jurisdictional issue before the military commission; and second, in concluding that a CSRT (or another competent tribunal) determination of ‘unlawful enemy combatant’ status was a prerequisite to referral of charges to a military commission, and that the military commission lacked the power to independently consider and decide this important jurisdictional matter under the MCA.”

The second part of this ruling gives the Pentagon the authority to level war crimes charges at detainees, and then to ask the military judge presiding over a military commission to find that the military’s evidence is sufficient to classify that prisoner as an “unlawful enemy combatant” and thus establish a commission’s own jurisdiction for a trial.

CMCR then went ahead and concluded that the Pentagon had offered enough evidence to show that the commission did have initial jurisdiction over Khadr sufficiently to enable it to examine directly whether, on the merits, it did have jurisdiction. That left open the possibility, however, that Khadr’s counsel could file a motion to dismiss for lack of jurisdiction, and the additional possibility that the commission might find on the merits that it did lack jurisdiction.

Because the appeals court ultimately concluded that Judge Brownback had the authority on his own to find initial jurisdiction over Khadr, it said it did not have to decide whether the military commission itself was competent to make that opening finding. It sent the case back to the military judge to “conduct all proceedings necessary to determine the military commission’s jurisdiction over Mr. Khadr.”

(NOTE: Detainees’ lawyers have long contended that there are serious flaws in the military commission trial system set up by the MCA. Those complaints were not directly at issue in the CMCR ruling on Monday. Whether those issues will get aired in federal court, before any war crimes trial is completed and a verdict reached, appears to depend upon whether the Supreme Court restores the rights of detainees facing war crimes tribunals to file habeas challenges to their trials. The government has argued that they may file challenges only after being tried and convicted, and may do so only in the D.C. Circuit Court.

(FURTHER NOTE: Pentagon officials have said that as many as 80 individuals being held at Guantanamo Bay may ultimately be charged with war crimes and tried before commissions — including some of the so-called “high value” detainees — individuals the government claims had central roles in terrorist attacks, including the attacks on Sept. 11, 2001. At this point, however, the only two individuals who had charges lodged against them were Khadr and Hamdan. A third detainee, David Hicks, pleading guilty and has been sent home to Australia to serve a sentence.)

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