[UPDATE: On 29 June 2007, COL Brownback denied the government’s reconsideration motion on the Khadr case. Story HERE.]
We’ve discussed both the Khadr and Hamdan cases previously here, here, and here, and just yesterday a very significant development has sprung itself on us. On Monday 4 Jun 07, the military judges of both cases (CAPT Keith Allred, JAGC, USN in Hamdan, COL Peter Brownback III, JA, USA in Khadr) granted the defense motions to dismiss all charges and specifications, without prejudice. Both rulings dismissed the commissions trial on jurisdictional grounds. The actual rulings are here for Khadr and Hamdan.
In Hamdan, the court noted that the accused had, on 2 October 04, appeared before a Combatant Status Review Tribunal (CSRT) in Guatanamo, which determined that Hamdan had been properly detained as an “enemy combatant.” However, the court noted that on 10 May 07, Hamdan’s charges were referred, specifying jurisdiction as arising due to Hamdan’s status as an “alien unlawful enemy combatant.” This is precisely the language that the Military Commissions Act (MCA) limits Military Commissions jurisdiction to under 10 U.S.C. § 948(d): jurisdiction is limited to law of war violations committed by “an alien unlawful enemy combatant.” What’s clearly missing from the CSRT’s determination is that Hamdan was also “unlawful.”
The court declined to adopt the Government’s invitation to find that the “unlawful” designation could be derived from President Bush’s 7 February 2002 memorandum entitled “Humane Treatment of al Qaeda and Taliban Detainees,” which contained the conclusion that “Taliban detainees are unlawful combatants and therefore do not qualify as Prisoners of War under Article 4” of the Geneva Conventions. CAPT Allred specifically noted that jurisdiction required “an individualized determination,” and not a blanket statement of jurisdiction extending to all Taliban or al Qaeda detainees.
Moreover, the court pointed out that the definition of an “enemy combatant” used in CSRT determinations encompassed civilians not taking active part in hostilities, but only “part of” or “supporting” Taliban or al Qaeda forces engaged in hostilities. The MCA, however, limited Military Commission jurisdiction to trying individuals who “engaged in hostilities or who . . . purposefully and materially supported hostilities.” 10 U.S.C. § 948a(1).
Because the CSRT definition was far broader than the MCA jurisdiction-limiting definition, the court declined to find that it provided support for jurisdiction to try Hamdan by Military Commission.
The court left open, however, the possibility that jurisdiction could be had under the MCA by the Government either reopening the 2004 CSRT of Hamdan, or by organizing a new CSRT, and directing the tribunal to more clearly enunciate or determine (we don’t know the exact failure) Hamdan’s status.
Khadr (the Canadian detainee)
COL Brownback’s ruling diverges in significant ways from the Hamdan ruling. The Khadr ruling more succinctly navigates to its conclusion: the system is a two-part process. First, the CSRT has to find “unlawful enemy combatant” status. Second–and only after the first prong is satisfied–the MCA provisions come into play. COL Brownback alludes to the U.S. court-martial system wherein jurisdiction is presumed by dint of the military member’s military status (and of course Article 2, UCMJ), which is established by name, SSN, rank, pay grade, organization or unit, dates of service, pay per month, nature of restraint and dates imposed, and so on, not to mention the accused’s presence in court in U.S. military uniform. That simply isn’t apposite here, the judge writes, given that the Government has nothing to allege re jurisdiction on Khadr except his name–and even that is not his actual name, but is an list comprised of allegations of three aliases and an “unidentified acronym.” In any case, COL Brownback concludes, a Military Commission is not the place to establish initial jurisdiction — that lies on the shoulders of the CSRTs.
Judge Brownback reasons, in support of his contention that Commissions can’t determine initial jurisdiction, first that the intra-Commission litigation of jurisdiction would be a “mini trial” involving “factual determinations.” He agues (but cites no clear support for this contention) this is not the intent of Congress in constructing the Commissions system. Second, an accused’s right to be tried only by a court with jurisdiction over him would be violated by extensive litigation “for months” in that very court of uncertain jurisdiction.
Vive la difference
What’s the difference between the two rulings? COL Brownback’s ruling clearly states that the Military Commission isn’t a venue where initial jurisdiction may be determined. Rules for Military Commissions (RMC) 905(c)(1) and (2)(B), however, place a burden of preponderance of the evidence–a relatively low standard–on the Government to establish jurisdiction. Moreover, while the MCA makes a CSRT ruling dispositive of whether an accused is an “unlawful enemy combatant” (UEC — this is getting tiring), the CSRT determination is only one of two ways that UEC may be proven. The other way is showing, by a preponderance of the evidence, that the accused is “a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces).” 10 U.S.C. § 948a(1).
Thus CAPT Allred’s ruling clearly found that the Government’s merely alleging a pre-2006/pre-MCA CSRT’s finding of “enemy combatant” status was insufficient, by a preponderance of the evidence, to demonstrate that alternate jurisdictional prong of § 948a(1). CAPT Allred left open the possibility that the Government could provide such evidence in a Military Commission venue: “There may well be evidence in the Government’s possession that could readily support a determination that the accused is subject to the jurisdiction of this Court.” However, CAPT Allred directed the Government nonetheless back to the CSRT route, and “pinged” the Government’s “having failed to determine, by means of a competent tribunal,” Hamdan’s status one way or another.
COL Brownback’s ruling lacks the relatively extensive Findings of Fact gracing the Hamdan ruling, so it’s impossible to conjecture what, if any, non-CSRT facts were presented that COL Brownback did not address, due to his emphasis on and deference to the CSRT jurisdiction-finding process. Rather, COL Brownback simply dismissed that the Commission was the appropriate venue to determine UEC status. Nonetheless, the two rulings are substantively different. The easy fix would be to follow both judges’ directions and reconvene quick CSRTs for both detainees. However, CAPT Allred’s ruling leaves open the first prong for proving jurisdiction, and it will be interesting to see whether the Government avails itself of it.