U.S. Court of Military Commission Review Hands Down First Ruling

Omar Khadr was captured when he was 15 and faces charges of murder, conspiracy, spying and supporting terrorism.^[1] He is charged with tossing a grenade that killed one U.S. soldier and injured another in Afghanistan in 2002.^[2] He is the son of an alleged al-Qaida financier, and his family has received little sympathy in Canada, where it has been called the "First Family of Terrorism," Khadr is currently being held as a Guantanamo Bay detainee.^[3]

There has been a massive fight over the Khadr case that has become representative of the many problems encountered by the Bush administration's military commissions system, which exists outside the traditional military and civilian rules of justice.^[4]

In the latest round of hearings the military appeals court sided with the Pentagon and overruled a judge who threw out the terrorism charges against Khadr.^[5] The U.S. Court of Military Commission Review ruled that a military court set up by the Bush administration was, in fact, the proper venue for deciding whether Canadian citizen Omar Khadr is an "unlawful enemy combatant" and trying him on terrorism charges.^[6]

This ruling reverses a military judge's June 4 ruling that the tribunal system created by Congress did not have authority to try detainees unless they were previously determined to be unlawful enemy combatants.^[7] But that ruling threatened to force the Pentagon to completely start over with their pending tribunals for a number of detainees, so the Pentagon officials argued that the June 4 ruling was just a matter of semantics and was insufficient to dismiss the case.^[8]

Monday's decision, the first ever by the newly formed U.S. Court of Military Commission, agreed.^[9] The appeals judges, who are military officers, asserted that the trial judge "erred in ruling he lacked authority ... to determine whether Mr. Khadr is an 'unlawful enemy combatant' for purposes of establishing the military commission's initial jurisdiction to try him."^[10]

In 2006, the Supreme Court ruled that President Bush's plan to try Guantanamo Bay detainees in military commissions violates U.S. and international law. As a result the Military Commissions Act of 2006[11] was passed; it mandated that rulings from the Guantanamo military commissions could be appealed to a United States Court of Military Commission Review.^[12]

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^[1] Pete Yost, Court Reinstates Terrorism Charges, Associated Press Newswire, September 25, 2007, available at LEXIS, News Library, Wire News Services.
^[2] Id.
^[3] Id.
^[4] Id.
^[5] Id.
^[6] Id.
^[7] Id.
^[8] Id.
^[9] Id.
^[10] Id.
^[11] The United States Military Commissions Act of 2006, Pub. L. No. 109-366, 120 Stat. 2600 (Oct. 17, 2006)
^[12] Matt Apuzzo, Growing Pains for Terror Appeals Court, Washington Post, August 22, 2007, available at http://www.washingtonpost.com/wp-dyn/content/article/2007/08/22/AR2007082201633.html (last visited September 25, 2007).