Who is an "Illegal Combatant"

Glenn Reynolds comments on the Guantanamo Bay decision. "This war has been over-lawyered, which is not to say that it has been well-lawyered." Scotus Blog has more commentary. Click more.

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Under the Military Commissions Act passed by Congress last Fall, Col. Brownback noted, such a commission has authority only to try an "alien unlawful enemy combatant." It expressly does not have jurisdiction, he said, to try a "lawful enemy combatant." Examining the charge sheet the military issued against Khadr, the judge found "nothing...to establish or support jurisdiction over Mr. Khadr, except for a bare allegation [of unlawful enemy combatant] in the wording of the Specifications of the Charges." In the charge sheet, Khadr is referred to as "an alien unlawful enemy combatant," and its jurisdictional claim asserts that he was found to be "an unlawful enemy combatant" by a military review panel on Sept. 7, 2004. ...

The judge stressed that he was "not ruling that no facts could be properly established concerning Mr. Khadr which might fit the definition of an unlawful enemy combatant" in the law passed by Congress. It is not up to the commission, he concluded, to make the decision that he meets that definition in order to give itself jurisdiction to try Khadr.

"A person had a right to be tried only by a court which he knows has jurisdiction over him. If the military commission were to make the determination, a person could be facing trial for months, without knowing if the court, in fact and in law, has jurisdiction," the judge wrote.

The ruling appeared to clear the way for the Pentagon to put Khadr back before a "Combatant Status Review Tribunal," an in-house military panel that is not set up as a court, to consider whether "a proper determination" of his status can be made. If Khadr then again was charged before a commission, he would be free, the judge declared, to "attack those facts" in the charges that "might combine to show him to be an unlawful enemy combatant."

Col. Brownback said he was not ruling that the Pentagon had to file a new set of charges against Khadr. That issue was not before him, but he added that that approadch "would seem to be the more prudent avenue to take." The ruling concluded: "The charges are dismissed without prejudice.".