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.

Children at Guantánamo Bay

Today's article in The New York Times regarding child soldiers detained during the "War on Terror" at Guantánamo Bay raises interesting questions about how children should be treated for committing war crimes.

The article explains that "the shrapnel from the grenade [thrown by the child]... ripped through the skull of Sgt. First Class Christopher J. Speer, who was 28 when he died.To American military prosecutors, Mr. Khadr is a committed Al Qaeda operative, spy and killer who must be held accountable for killing Sergeant Speer in 2002 and for other bloody acts he committed in Afghanistan. But there is one fact that may not fit easily into the government’s portrait of Mr. Khadr: He was 15 at the time."

Mr. Khadr is now 20. International law does not prohibit people under 18 from being tried for crimes of war. Lawyers for Mr. Khadr argue that instead of being perceived as a war criminal, he should be thought of as a victim of warfare. The article reads:

"The prosecutors, they say, included in their charges acts that occurred when Mr. Khadr was younger than 10. Mr. Khadr “was subject to undue adult influences,” said Muneer I. Ahmad, an associate professor at the American University Washington College of Law, who has represented Mr. Khadr.

'If Omar had had his free choice,' Professor Ahmad said, 'what he would have chosen to do is ride horses, play soccer and read Harry Potter books.'"

Speculation about what Mr. Khadr would have done if he were not subject to "undue adult influences" is a start. But what should concern lawyers and advocates even more now is what Mr. Khadr will do if he is acquitted of these charges. Would he willingly commit acts against the U.S. now that he is an adult (according to law) and can make his own choices? This should really be the concern of advocates on both sides of the issue.