New Appeals Court Mulls 'Enemy Combatant' Labels The new U.S. Court of Military Commission Appeals heard its first case Friday. The Defense Department panel will consider whether detainees must be found to be "unlawful" enemy combatants to have criminal charges against them heard by military commissions.
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New Appeals Court Mulls 'Enemy Combatant' Labels

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New Appeals Court Mulls 'Enemy Combatant' Labels

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New Appeals Court Mulls 'Enemy Combatant' Labels

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ROBERT SIEGEL, host:

Lawyers went before a brand new military appeals court today to argue about which detainees at Guantanamo Bay can be brought to trial. Specifically, the court is considering the case of Omar Khadr. He's a Canadian citizen and he was 15 years old when he was captured in Afghanistan in 2002. He allegedly killed a U.S. soldier.

A military commission at Guantanamo has ruled that it has no jurisdiction in the case. The arguments today were about that ruling.

Lieutenant Commander William Kuebler, who is leading Khadr's defense, spoke outside the courthouse in Washington, D.C.

Lieutenant Commander WILLIAM KUEBLER (Lawyer; U.S. Navy Judge Advocate General's Corps): This is about the credibility of the United States and the perception both at home and abroad of our commitment to the rule of law.

SIEGEL: NPR's Dina Temple-Raston is here to talk about these proceedings. And Dina, what is this appeal about?

DINA TEMPLE-RASTON: In a lot of ways, this appeal is all about one word, and that one word is unlawful. According to the law passed by Congress, to set up military tribunals in the first place, only something called an unlawful enemy combatant can be prosecuted. The problem is that in Guantanamo, they've been using the name enemy combatant without that unlawful part. And the government is arguing that that's just a technicality, and the defense is arguing that Congress put the word unlawful in there with great purpose so that there would be a higher threshold for people who are standing trial.

SIEGEL: What's the difference between somebody who is an unlawful enemy combatant and an enemy combatant?

TEMPLE-RASTON: Well, the idea behind enemy combatant is that they're being held off the field of battle during hostilities, kind of like a prisoner of war. The problem here is if you fought for the Taliban or you fought for al-Qaida, you weren't in a uniform or representing a government, so they had to come up with some new name for it. And that new name they came up with was enemy combatant. So everybody in Guantanamo is determined to be an enemy combatant. And unlawful enemy combatant is thought to have committed some sort of crime or atrocity, so they're brought up on charges for that.

The government is arguing that if you were a member of al-Qaida, which Omar Khadr allegedly was, then the unlawful part is understood. And the defense is arguing that the way the law is written, that you have to be specifically and separately found to be an unlawful enemy combatant. This is all sort of semantics, clearly.

SIEGEL: So the argument that's being made against Khadr is that if he killed a U.S. serviceman in Afghanistan, because he was in al-Qaida, allegedly, that's an unlawful act and he can be tried for it.

TEMPLE-RASTON: Exactly. But the problem here is that the way the law is written, you have to have that unlawful moniker first before you can be brought to trial. The government is saying, well, by the end of the trial, you'll know he's unlawful because he killed a soldier. And the defense is saying that's putting the cart before the horse.

SIEGEL: Well, did the court decide anything in this case today?

TEMPLE-RASTON: No, not today. The panel of three military judges said that they were going to take this under advisement and make a decision in due course, and we don't know what due course means.

SIEGEL: Well, obviously, the outcome of the case is very important to Omar Khadr. Beyond that, its significance?

TEMPLE-RASTON: Well, it's important because this sort of sets the bar for the military tribunals. The government is arguing that they're trying to do the right thing and try the people who are in Guantanamo and not just have them languish there. And the defense argument is that this case is about U.S. credibility and its commitment to rule of law. If Congress said someone had to be designated an unlawful enemy combatant before they go to the tribunal, then that's what they mean and you can't have any backsliding on that.

SIEGEL: When might there be a decision in this case?

TEMPLE-RASTON: It's completely unclear. They created this commission essentially for the Khadr case. They hadn't anticipated that they were going to have to deal with appeals quite as quickly. So we have really no idea when we're going to hear back from them.

SIEGEL: NPR's Dina Temple-Raston. Dina, thank you very much.

TEMPLE-RASTON: My pleasure.

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