Why detainee trials got snagged over a word

No one has designated those held at Guantánamo Bay 'unlawful' combatants. Does it matter?

from the June 6, 2007 edition

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At the heart of both rulings is a determination that the Military Commissions Act requires a two-step process to put Al Qaeda suspects on trial before a military commission. The judges ruled that the MCA requires that Guantánamo detainees must be designated as illegal enemy combatants before being placed on trial.

Pentagon officials created combat status review tribunals to determine the legal status of detainees. But that process does not use the term "unlawful enemy combatant"; it merely determines whether a detainee is an enemy combatant.

Col. Peter Brownback, the military judge in the case of Mr. Khadr, viewed this distinction as critical.

But some legal analysts note that the term "enemy combatant" as used by the combat status review tribunals is the legal equivalent of the "unlawful enemy combatant" referred to in the MCA.

When creating combat status review tribunals in July 2004, Deputy Defense Secretary Paul Wolfowitz issued an order for the tribunals to determine whether Guantánamo detainees were enemy combatants. "An 'enemy combatant' for purposes of this order shall be an individual who was part of or supporting Taliban or al Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners. This includes any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces," the order reads in part.

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.

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