A military judge today refused to reconsider his early June decision that the military does not have jurisdiction to try Canadian detainee, Omar Ahmed Khadr. That decision may stop cold administration plans to try detainees held indefinitely at Guantanamo as enemy combatants by military commissions.
Today, the military judge not only denied the administration's position, advanced by military prosecutors, but strongly challenged the legal foundations of that position.
This decision is a huge victory for justice and a strong rebuke for the administration. This decision may make it impossible for the administration to implement military tribunals against civilians.
This "Disposition of Prosecution Motion for Reconsideration" is exceptional because it rejects the principles, asserted by the Bush administration, used to justify the use of military commissions.
http://www.scotusblog.com/...
(5) Finally, the use of military courts, tribunals, and commissions to try civilians - and there has certainly been no allegation that Mr. Khadr is not a civilian - has faced and continues to face great disfavor in the United States. While such trials have been ratified by the federal court system on occasion, the federal courts have also been inclined to determine that military courts do not have jurisdiction or competence to try civilians. In fact, during the undersigned Military Judge's service in the Army, the Supreme Court has even strictly limited the ability of courts-martial to try active duty members of the United States armed forces.
(See, e.g., O'Callahan v. Parker, 395 U.S. 258 (1969), Relford v. Commandant, 401 U.S. 355 (1971).)
Given that the use of military courts to try civilians is not favored, Congress could not have intended the logical, if unintended, result of the government’s argument and position in this case: the military can seize whomever it wants, charge them, refer them to trial by Military Commission, and only then, after the Commission has been called to order, will the initial question of jurisdiction in accordance with the M.C.A. be resolved.
The military judge addresses our greatest concern about the MCA - that civilians could be seized by the military and tried by military commissions without Constitutional protections. He asserts that military does not have the jurisdiction to do this.
The judge slaps down the administration's weak motion to reconsider the determination that the military lacked jurisdiction to try this case:
c. Ruling as to procedural issues. In its Motion for Reconsideration, the government presented no new law, facts, or argument which were not presented, or fairly raised, or implied in its argument on 4 June 2007. Further, the prosecution presented no evidence or facts which the prosecution did not have the opportunity to present at the 4 June 07 session. The only factual issue - the written CSRT finding - is not disputed, as shown by AE 011. Having presented no new law and no new facts, there is no basis to reconsider and the Military Judge declines the opportunity to reconsider the 4 June 07 ruling.
This firm stand reaffirms that military trials can not be held for enemy combatants that were not previously determined to be illegal enemy combatants by strict legal procedures. This reaffirmation will likely stop the administration's plans to try Guantanamo prisoners by military commissions. The military judge says clearly it is not their jurisdiction.