When it comes to figuring out who is with al Qaeda, Omar Khadr is not a close case.

In July 2002, Khadr was on the battlefield in Afghanistan, aligned with al Qaeda. During a ferocious firefight against U.S. forces, Khadr allegedly threw a grenade at his enemies, killing a medic, U.S. army Sergeant Christopher Speer, and wounding three other Americans, including Sergeant Layne Morris, who lost an eye.

At the time, Khadr was 15 years old. Young? Sure, but it was no surprise to find him waging war against Americans. His father, Egyptian-born Ahmed Said Khadr, was an intimate of Osama bin Laden. The elder Khadr was reputed to be al Qaeda’s highest ranking operative in Canada. His sons were trained in al Qaeda camps. His daughter married an al Qaeda operative in a ceremony attended by bin Laden himself.

In 1995, Ahmed Khadr was arrested by Pakistani authorities in connection al Qaeda’s bombing of the Egyptian embassy in Islamabad. By intercession of the Canadian government, he was released. In October 2003, over a year after his son Omar is said to have murdered Sgt. Speer, Ahmed Khadr was finally killed in Pakistan. During the same counter-Qaeda operation, Pakistani authorities also encountered Omar’s younger brother, then-14-year-old Abdul, who was paralyzed. Meanwhile, of Omar’s two older brothers, one, Abdullah, is a fugitive, and the other, Abdurrahman, was captured fighting Coalition forces in Afghanistan in November 2001.

So, is Omar Khadr, a Canadian al Qaeda murderer of an American soldier, an “alien unlawful enemy combatant”? To doubt that, you would have to doubt that you are reading this … or, for that matter, breathing. It comes as no surprise, then, that he is among the relative handful of the remaining 380 or so Guantanamo Bay detainees who has been referred for a war-crimes trial before a military commission.

Nevertheless, on Monday, the commission threw out the charges of murder and maiming. The presiding military judge, army Colonel Peter E. Brownback III, reasoned that the military had established only that Khadr was an enemy combatant, not an alien unlawful enemy combatant. Thus, according to Col. Brownback, the commission lacked jurisdiction to proceed.

Naturally, the ruling has provoked squeals of joy from Bush-bashers who’ve devoutly sought a return to the good old pre-9/11 days when terrorist operatives were treated like common tax cheats — committed to the civilian justice system and bathed in the bountiful privileges the U.S. Constitution fashioned for American citizens. The dismissal, moreover, is quietly applauded by many military justice officials who’ve made little secret of their resentment over being frozen out of the administration’s decision to employ commissions — something wartime commanders-in-chief have done since General George Washington convened such tribunals during the Revolutionary War.

Despite the champagne corks, however, a deep breath is in order. The decision to toss the charges is meritless, and should swiftly be set aside on appeal.

ALIEN ENEMY COMBATANTS
It is elementary that a court, including a military court, is not competent to entertain a case unless it has jurisdiction. This simply means that the conditions set by congress for the court’s intervention must be met. In this instance, jurisdiction for military commissions is now controlled by the Military Commissions Act (MCA), signed into law by President Bush at the end of 2006 (the timing is relevant for reasons I’ll get to presently).

Under the MCA, only “[a]lien unlawful enemy combatants, as defined in section 948a of this title, shall be subject to trial by military commissions[.]” So, the question arises, how does section 948a define alien unlawful enemy combatants (AUECs)? It says the term applies to:

an individual determined by or under the authority of the President or the Secretary of Defense — (A) to be part of or affiliated with a force or organization — including but not limited to al Qaeda, the Taliban, any international terrorist organization, or associated forces — engaged in hostilities against the United States or its co-belligerents in violation of the law of war; (B) to have committed a hostile act in aid of such a force or organization so engaged; or (C) to have supported hostilities in aid of such a force or organization so engaged.

That certainly seems to apply to Khadr. Yet, we quickly see one problem with this definition: It does not appear to require that a detainee be an alien — i.e., a non-American. Alienage, however, is palpably assumed. After all, the term being defined explicitly refers to “alien[s].” What’s more, in the preamble to the MCA, Congress noted that it was addressing those detainees subjected to military commissions as a result of President Bush’s November 2001 order concerning the “Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism” (emphasis added). And we further know that only aliens have been held at Gitmo — the few times (three in all) when combatants have been known or discovered to be American citizens, custody of them has been transferred to a brig inside the United States.

In any event, it would be a simple matter to establish whether or not someone is an American citizen. And even if we were to get hyper-technical and say the definition of AUECs is legally suspect because it does not expressly mention the patently obvious — i.e., that a detainee must be an alien to qualify — such a claim would be unavailing for a non-American. Generally speaking, one is not heard to complain about a statute unless he is personally prejudiced by its flaws. Only a U.S. citizen could be prejudiced by the possibility that the definition of AUEC could unwittingly result in his being found an alien combatant. As there are no U.S. citizen detainees at Gitmo, that is not a cause for concern.