Monday, June 4, 2007

Showdown between Courts & Congress over Military Tribunals yet again?

The Washington Post reports that Omar Khadr, the 15 year old child soldier who was caught in Afghanistan, is now free of the charges brought against him by the government. The judge presiding over the case, Army Col. Peter Brownback, dismissed all charges on the basis of the Military Commissions Act which allows military tribunals to try only "unlawful alien enemy combatants." Khadr was categorized as simply an "alien enemy combatant" by the Bush administration.

The Military Commissions Act was passed by Congress in response to the USSC decision in Hamdan v. Rumsfeld (2006) which declared among other things that the Court could decide whether or not the military tribunal for Hamdan was justified. It found that the tribunal was not justified because it violated the Uniform Code of Military Justice and the Geneva Convention. In short the decision rebuked the government's assessment of the lawfulness of these military tribunals. Now, the act which was created to limit the court's powers in looking at these tribunals is being used against the government. There appears to be a battle going on between courts and Congress over this matter yet again.

In defining the ability of the military tribunals to try only "unlawful alien enemy combatants" the government did not intend to exclude people such as Khadr who were not associated with any particular government engaged in a war with the U.S. He was a member of Al-Qaeda, not part of a regularly constituted body of people fighting on behalf of a state such as an army or navy.

Most likely the government will reclassify Mr. Khadr and send him before the tribunal again. Hopefully we will get to the interesting legal question soon about how the court will deal with the fact that Mr. Khadr was only a child (under our laws) when he committed war crimes on behalf of Al-Qaeda.

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