Why detainee trials got snagged over a word

When Congress wrote the MCA, it included this definition of "unlawful enemy combatant": "a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States ... (including a person who is part of the Taliban, al Qaeda, or associated forces)."

Thus, the MCA and the combat status review order set a similar legal standard for an enemy combatant. The only significant difference is the addition of the word "unlawful" in the MCA.

But there is a second definition of "unlawful enemy combatant" in the MCA. This one requires a determination by a combat status review tribunal. Judge Brownback relied on this second definition, saying that since the tribunal had not made that determination, the military commission lacked jurisdiction under the MCA to hear the case. He rejected the possibility that the commission itself could determine if the defendant qualifies as an unlawful enemy combatant.

Mr. Rivkin says the judge is reading the MCA too narrowly. "In the MCA, clearly Congress meant to make distinctions between lawful and unlawful combatants, but the question is how do you get to that determination," he says. "Congress did not vest a decision exclusively in a combat status review tribunal and deprive a military commission of an opportunity to have an independent determination of this issue."

In his decision, Brownback also appears to be raising questions about the sufficiency of the combat status review tribunal process to establish jurisdiction for a commission trial.

Opponents of the detention camp at Guantánamo have long complained that the streamlined combat status tribunals offer no real opportunity for innocent detainees to make a credible case.

Rivkin says that's why the better reading of the MCA is the broader reading. "It is [the commission's] legal duty to consider whether or not someone is an unlawful enemy combatant," he says. "The military commission shouldn't rely on the [review tribunal's] determination of this."

He adds, "The combat status review tribunal is once over lightly; it is good enough for detention purposes, but it is not good enough for punishment purposes."

In dismissing the cases against Khadr and detainee Salim Hamdan, both Judge Brownback and Judge Keith Allred permitted the government extra time to appeal. One potential complicating factor for prosecutors is that the designated military appeals court is not even functioning yet.

"They have to file an appeal to a nonexistent court," Mr. Ahmad says. "That captures perfectly what is wrong with the military commission system."

The government has other options. In dismissing the charges on jurisdictional grounds, the judges said they will permit prosecutors to refile the charges later. Under one scenario, legal analysts say, the government could conduct new combat status review tribunals for the two defendants and seek their designation as "unlawful" enemy combatants.

But even that scenario carries a price, analysts say. It would require a change in the review tribunal procedures and any change must be submitted to Congress 60 days before it takes effect.

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