Judge tosses detainee case

A military judge threw out charges against a Guantanamo detainee today, on a major technicality that could potentially delay or derail dozens of cases.

Canadian detainee Omar Khadr, who was 15 when he was captured after a deadly firefight in Afghanistan and who is now 20, will remain at the remote U.S. military base along with some 380 other men suspected of links to al-Qaida and the Taliban.

The judge, Army Col. Peter Brownback, said he had no choice but to throw out the Khadr case because he had been classified as an "enemy combatant" by a military panel years earlier — and not as an "alien unlawful enemy combatant."

This may seem like a minor technicality, but it's not. "Alien" means U.S. citizens cannot be subjected to the commissions. And "unlawful" means neither can someone who merely took up arms against the United States. Unlike "enemy combatant", which just means somebody who shoots at American soldiers.

So now the United States will have to re-examine all the existing detainee cases and certify that the defendants are unlawful enemy combatants. That could take months.

And here's an irony for you: The military says it will appeal the ruling. Trouble is, the court that is supposed to hear such appeals -- something called the "Court of Military Commissions Review" -- doesn't exist. Constituting it could also take months.

The drawbacks of trying to build a court system from scratch aside, this case has even more interesting things going for it. In fact, I meant to write about this several days ago but never found the time.

Thus far, only three detainees have been charged under the commission system: Accused bin Laden driver and bodyguard Salim Ahmed Hamdan; Australian David Hicks; and Omar Khadr.

These three are the ones we, in our infinite wisdom, decided to put on trial first. The two most notable things they have in common are being fairly small potatoes and not really fitting the popular description of "terrorist". All three, in fact, were captured on the battlefield in Afghanistan, all but Hamdan nothing more than footsoldiers for Al-Qaeda's conventional forces and Hamdan seeming to be little more than that.

But Khadr is unique in one respect: he was 15 when he was captured.

Someone please tell me why, in our infinite wisdom, we decided that the third person charged should be a child soldier? Can anyone think of anything more politically explosive than that? International law (despite a definitional gray area as to what constitutes a child) generally considers child soldiers to be victims, not criminals; it focuses its opprobation on the commanders who recruit, train and lead children, not the children themselves.

The kids themselves are handled more carefully by the international community, through programs designed to ease them out of killing and back into "normal" life. They aren't thrown in prison to rot or tried for crimes. Kids that young simply aren't considered fully responsible for their actions.

I'm not a fan of the tribunal system, but I cannot even begin to plumb the stupidity of throwing such red meat to the tribunal's critics. "Hi! We're the United States! Not only do we detain people for years without charge; when we finally do charge them, we do it in a military court with limited rights for the accused, and we put kids on trial!"

Lordy, we're dumb.

civil liberties, terrorism, Omar Khadr, Gitmo, politics, midtopia