Why detainee trials got snagged over a word

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

When Congress wrote the Military Commissions Act in 2006, the authors were careful to specify that only "unlawful" enemy combatants could be placed on trial under the new form of military justice at Guantánamo Bay, Cuba.

They wanted to make sure that President Bush and his commanders reserved the streamlined tribunals for the most egregious violators. So Congress repeatedly drew distinctions between "lawful" enemy combatants, who could not be tried at Guantánamo, and "unlawful" enemy combatants, who could.

It was all designed to help the Bush administration speed up the military-commission process and quickly bring suspected Al Qaeda members to trial. Instead, that careful distinction between lawful and unlawful combatants has now brought the controversial process to a screeching halt.

On Monday, military judges dismissed all charges against two accused members of Al Qaeda who were slated to undergo military commission trials at Guantánamo. The judges said the two men were never designated as unlawful enemy combatants as required under the Military Commissions Act.

The pretrial rulings sparked a new round of criticism from defense lawyers, human rights activists, and administration opponents who said the episode is more evidence of the need to dismantle the commissions and shut down the Guantánamo prison camp.

"Why is it that every time they try to have a military commission something goes wrong?" asks Muneer Ahmad, a professor at American University's Washington College of Law who has represented Guantánamo detainee Omar Khadr. "This is what happens when you try to create a legal system from scratch."

Others see the rulings as a relatively minor setback, with military prosecutors expected to win any appeal. Some analysts say the judges are simply wrong.

"I think critics are vastly exaggerating the significance of this," says David Rivkin, a Washington, D.C., lawyer who served in both the Reagan and elder Bush administrations.

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.

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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Guantánamo chronology

November 2001: President Bush authorizes indefinite detention for non-US citizens, without legal protection of Geneva Convention.

January 2002: First prisoners arrive at Camp Delta, a terrorist detention camp at Guantánamo Bay, Cuba; by June, there are 536 detainees.

May 2003: The Defense Department says it will hold special military commissions to try detainees for special war crimes.

December 2003: David Hicks, an Australian who allied with the Taliban, is the first detainee to receive counsel from a US military lawyer.

June 2004: The Supreme Court rules that Guantánamo detainees may challenge their detention in a US court.

July 2004: The Defense Department authorizes special military tribunals to determine if each detainee is an 'enemy combatant.'

November 2004: A federal judge rules that the military commission process set up to try Salim Hamdan, accused of being Osama bin Laden's driver, is illegal.

November 2005: After a government appeal and a ruling in federal appeals court, the Supreme Court agrees to hear the Hamdan case.

June 2006: The Supreme Court rules that the president overstepped his authority in creating military commissions; the administration and Congress respond by writing the Military Commissions Act (MCA),

October 2006: Bush signs the MCA, authorizing military trials.

June 2007: Military judges dismiss charges against Hamdan and Omar Khadr, accused of killing a US serviceman and detained at age 15. The judges state that the MCA draws a distinction between 'unlawful' and 'lawful' enemy combatants; only unlawful combatants can be tried by a military commission.

Sources: National Institute of Military Justice, news reports – Compiled by Leigh Montgomery

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