Military commissions’ powers broadened — If I’m reading this correctly, I think I’m pretty happy with this. It is true that the appeals court decided that the technicality preventing the lower court from moving forward (namely, the conclusion that a CSRT [or another competent tribunal] determination of ‘unlawful enemy combatant’ status was a prerequisite to referral of charges to a military commission) was incorrect. This means that charges can move forward. However…from the first time I read the reasoning on that technicality, I thought it was a bit stretched. And more importantly, I think the appeals court did clarify several good points.
I’m no fan of the Military Commissions Act of 2006; I think that Congress did a terrible, and almost certainly unconstitional, disservice to the rule of law in invalidating habeas challenges by those incarcerated at Guantanamo. That being said, the clarifications by the appeals court within the context of the MCA are important: 1) …it rejected the Pentagon argument that there was no legal difference between a finding of an
enemy combatant by a CSRT and an
unlawful enemy combatant. The former can be captured and held during a conflict, but cannot be charged with crimes, it ruled. Only an
unlawful enemy combatant may be charged, it concluded, citing
the well recognized body of customary international law. — That’s a big deal, and I’m very glad that we’re making some attempt to abide by established international laws that we expect everyone else to adhere to.
2) The appeals court also upheld Judge Brownback’s conclusion that the CSRT finding of
enemy combatant was not sufficient to set up a trial before a commission. It thus rejected the Pentagon conclusion that prior statements by President Bush and other high officials were sufficient to turn anyone accused of ties to the Al Qaeda terrorist network or to the Taliban into an
unlawful enemy combatant. — Very, very important! We actually need to prove our accusations, which is kinda nifty when you’re living in a…whatcha call it…yeah, democracy. Winner here, definitely.
3) Moreover, the appeals court said, Congress did not mean to validate all prior CSRT determinations so as to turn those into findings into unlawful status. — Oy vey. Not a rubber stamp. Whoda thunk?
Overall, I’m pretty happy with the results here (again, assuming I’m not missing anything blatently obvious to a lawyer type). The military legal system (in particular) seems to once again be pretty serious about following the rules, which is something I give them a lot of credit for, for the most part. There have been some exceptions, but they’ve mostly been in the forefront of trying to do things the right way, and for that I give them credit.
Note: my so-called
legal analysis is piss-poor layman stuff…much better to go read the entire post. Even better…stay up to date on the entire process, as it’s an important one.