More details emerging with respect to the jurisdictional issues surrounding military commission proceedings. As I, Tony Arend, and Marty Lederman discussed earlier, Judge Brownback dismissed the charges against Khadr yesterday for want of jurisdiction. In brief, he concluded that it is necessary for a CSRT first to declare Khadr an alien unlawful enemy combatant (AUEC)--not just an enemy combatant--before the commission may exercise jurisdiction.
In my post yesterday, I criticized that conclusion on two grounds. First, I criticized the conclusion that the AUEC determination must be made by a CSRT. The MCA actually envisions two possible paths to establishing the jurisdictional predicate of AUEC status. One is indeed a CSRT determination to that effect, but the other is a factual showing that the defendant 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 USC 948a(1)(A)(i). That is, the MCA seems to contemplate that the AUEC determination can be made by CSRT or by some other authority, possibly including the commission itself.
Second, I criticized Judge Brownback's conclusion on the ground that the actual CSRT determination in Khadr's case--i.e., that he is an enemy combatant--employed a definition that seems to closely track 948a(1)(A)(i) definition, indicating that the CSRT may have made the requisite determination after all. The definition of enemy combatant employed by CSRTs is as follows:
"An ‘enemy combatant’ for purposes of this order shall mean an individual who was part of or supporting Taliban or al Qaida forces, or associated forces that are engaged in hostilities against the United States or its coalition partners. This includes any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces.”
Judge Brownback's opinion did not expressly engage the latter issue. Now it turns out that later the same day another judge did. Judge Keith J. Allred (Captain, JAGC, USN) discussed this argument in the course of concluding that the AUEC predicate had not yet been satisfied as to Salim Hamdan. Judge Allred's written ruling is posted here by NIMJ. Here is the key language concerning the possible overlap between the two definitions:
"2. The CSRT finding was made using a different standard than the one the MCA establishes for determining [AUEC] status. The definition of 'enemy combatant' used by the 2004 CSRT is less exacting than the definition of 'unlawful enemy combatant' prescribed in the MCA. The CSRT could have found a civilian not taking an active part in hostilities, but 'part of' or 'supporting' Taliban or al Qaeda forces engaged in hostilities to be an 'enemy combatant.' Yet the MCA limits this Court's jurisdiction to those who actually 'engaged in hostilities or who . . . purposefully and materially supported hostilities.' The CSRT did not apply this definition, and its finding therefore does not support the jurisdiction of this Tribunal."
Is there really a distinction here? Both definitions encompass persons who are not personally "engaged" in hostilities, so long as some other criterion is met. For the CSRT definition, it would be enough to show that the defendant was (i) part of or (ii) provided support to al Qaeda, the Taliban, or an associated group. The MCA definition expressly encompasses the "part of" test (i.e., the person who is a "part" of al Qaeda, the Taliban, or associated forces). But the MCA definition does not expressly encompass the "provided support" test. It does come close to doing so; it includes any person "who has purposefully and materially supported hostilities." But that's not quite the same thing as providing support to the named organizations irrespective of the link between the support provided and any hostile acts, as contemplated in the CSRT definition.
Consider, for example, hypothetical defendants A and B. A provides cash to al Qaeda without any knowledge or intent as to how the money might be used. B provides an RBG, hoping it will be used to attack Coalition forces in Afghanistan. B would satisfy both definitions (providing suppport to the organization, and providing support to hostilities). A would satisfy the CSRT definition (support to al Qaeda), but A might or might not satisfy the MCA definition (support to hostilities).
In light of all this, it seems to me that the real question with respect to the Khadr and Allred rulings is whether the Commission should instead have conducted hearings to determine the jurisdictional facts pursuant to 948a(1)(A)(i). That is, Judge Allred (and Tony) have convinced me that my second critique is wrong, but the first critique remains. Be sure to read Mary's fourth point here, which does a great job of explaining the underlying tensions that no doubt are playing a role here - the jurisdictional prerequisite of unlawful combatancy overlaps with at least one of the substantive charges that the commission would then go on to adjudicate in Khadr's case (murder in violation of the laws of war, which in the prosecution's view would include a killing committed by an unprivileged belligerent). This problem won't go away, of course, when a CSRT reconvenes to apply the AUEC label to Khadr and Hamdan.