by Priti Patel.
Priti Patel is an attorney at Human Rights First focusing on U.S. detention practices and the impact of these practices on human rights and civil liberties. This is the second in a series of posts from the military tribunals at Guantanamo Bay, Cuba

Today, two military judges hammered a couple of more nails into the coffin of the military commissions when they dismissed the cases of Omar Khadr and Salim Ahmed Hamdan.  Army Col. Peter Brownback III and Navy Cpt. Keith Allred both held that the prosecution had failed to show that Omar Khadr and Salim Ahmed Hamdan were unlawful enemy combatants and thus the military commissions did not have jurisdiction to try them.   

The primary grounds for the dismissal were the same in both cases.  Basically, the Military Commissions Act of 2006 (MCA) provides the military commissions with jurisdiction over: (1) individuals who meet the MCA’s definition of unlawful enemy combatant (which HRF has criticized for being overbroad and vague) or; (2) over individuals who have been found to be unlawful enemy combatants by a Combatant Status Review Tribunal (CSRT) or by another competent tribunal.  The MCA specifies that military commissions do not have jurisdiction over so-called “lawful enemy combatants.”  And herein lies the problem.  The CSRTs established by the Bush Administration beginning in 2004 only determined whether a person was an enemy combatant, using a different definition than the MCA’s, for the purpose of detention.  The CSRT did not determine if a person was an unlawful enemy combatant – as defined in the MCA – for the purpose of trial by a military commission.    

In both the Hamdan and the Khadr cases, the prosecution attempted to argue (among other things) that this distinction didn’t matter.  According to the prosecution, based on President Bush’s February 7, 2002 memorandum (in which the President found that Taliban and al-Qaeda detainees did not qualify as prisoners of war under the Geneva Conventions), all al-Qaeda and Taliban detainees were unlawful combatants.   In addition, the CSRT proceedings found each of Khadr and Hamdan to be enemy combatants.  Merging these two determinations, the prosecution argued, Khadr and Hamdan were unlawful enemy combatants for the purposes of the MCA.    Both Col. Brownback and Cpt. Allred disagreed.

In fact, Cpt. Allred rejected the prosecution’s argument, based on the President’s memorandum, that the President could determine unlawful combatant status for a group of people, as opposed to an individual basis, for the purpose trial before a military commission.  Indeed, during the argument, Cpt. Allred asked the prosecutor (and I am paraphrasing) if he wasn’t troubled by the idea that the President could declare an entire group of people to be unlawful combatants without any individual, factual finding. 

Cpt. Allred put his finger on one of the major problems with the administration’s detention, interrogation, and prosecution policies over the past five years.  The reason there is so much confusion – including among military judges! – about what constitutes an “unlawful enemy combatant” vs. “an enemy combatant” vs. an “alien unlawful enemy combatant” is that most of these categories have no basis in the laws of war and their definitions in the last five years have constantly changed.  In his February 2002 memorandum, the President and his administration invented a whole new category for prisoners.  Since then, members of the administration have greenlighted the use of harsh interrogation policies on this new category of people (policies that have since been rejected by Congress), subjected them to indefinite detention, and fashioned a wholly new trial system to prosecute a small number of them.  The military commissions are the latest manifestation of flawed policy choices.   

So do these rulings mark the end of this second version of the military commissions?  Maybe.  Maybe not.  The prosecution has indicated its intent to appeal both the Hamdan and Khadr dismissals.  But more and more, the military commissions are like a game of whack-a-mole—just when the administration thinks it has taken care of one emerging crisis, another appears.  And Congress is taking note.  In response to this latest setback, at least one senior Republican Senator, Arlen Specter, has voiced his deepening concern regarding Guantanamo and the commissions.  Isn’t the administration tired of this game?  The United States doesn’t need to continue this way when it has two widely-admired, tried and tested judicial systems: it’s time to go back to using either the U.S. federal courts or courts-martial, as applicable, to try terrorist suspects.