The AP is reporting that a military court today threw out murder charges against Omar Khadr on the grounds that the military commission system as constituted may only try “alien unlawful enemy combatants” and Khadr was only previously found to be an “enemy combatant.” According to the defense lawyer in the case, none of the detainees at Gitmo have been found to be “unlawful” enemy combatants.
Briefly, an enemy combatant can be any enemy soldier. Such a combatant is unlawful if he has not comported with the laws of war — including belonging to a regular army, wearing a uniform, carrying weapons openly, and not targeting civilians. It should have been easy enough to do this with al Qaeda detainees. If it really has not been done, however, that could be a big problem since it would presumably necessitate re-doing all of the combatant status review tribunals before commissions could go forward.
The government is going to appeal. That, too, could be problematic according to the defense, which says they have only 72 hours to do so and the appellate court for commissions has not been constituted yet.
We don’t know enough facts yet to make an assessment of what’s going on here. Yet, if things are as the defense claims — and it bears remembering that very often they are not — this would be a demonstration of monumental incompetence. Let’s hope that’s not the case. Stay tuned.