Today, a US military judge dismissed charges against a 20-year-old prisoner. This decision was widely, but not competently, reported around the world. The Associated Press story in US papers was close to accurate.
Canadian detainee, Omar Khadr, was accused of throwing a grenade in Afghanistan which killed U.S. Army Sgt. Christopher Speer. Many of the foreign reports focused on the fact that Khadr was 15 at the time, which had nothing to do with the decision.
The judge, Army Col. Peter Brownback, dismissed the charges because Khadr was classified as an “enemy combatant,” whereas the law enabling the trials applied to “alien unlawful enemy combatants.” The same defect applies to all of the other detainees subject to military trials.
After quoting assorted lawyers saying that all the trials are defected, the reporter finally gets to the nub of the matter. Note these two paragraphs:
The Pentagon said the issue was little more than semantics.
A spokesman said the system was not dealing with lawful combatants, who fight in uniform for a national army. It was set up to determine if a detainee acted as an “unlawful enemy combatant” who was not in an internationally recognized military, did not wear a uniform or rank insignia, did not carry arms openly and was not a party to the Geneva Conventions, he said.
Individuals are not, of course, ever parties to the Geneva Conventions. The other points are all correct. Illegal combatants – like Nathan Hale (American) and Major John Andre (British) in the American Revolution – are illegal combatants under the Law of War, because they are behind enemy lines, not in a unit and not in uniform.
Thousands of words will be wasted on this case, not counting those of Rep. Gerald Nadler of New York, who has already weighed in. The charges were dismissed without prejudice. The labels on the prisoners need to be changed in accord with their factual circumstances. Then all the trials can proceed.