I'm not that surprised that the judges went along with the order. There is a LOT of dissatisfaction in the military with the way the tribunal process works. The number of defense attorney's and even a couple of the prosecutors who have criticized the system is remarkable. The fact that so many are willing to speak out hints of broader dissatisfaction within the ranks.

When defense lawyers did not oppose the move, a judge froze the proceedings against Canadian Omar Khadr, who was captured at age 15 and is accused of murdering a U.S. soldier with a grenade during a firefight in Afghanistan. [...]

What I've never understood about this case in particular is, how is this murder??? If you're in combat, and you kill an enemy fighter, it is not generally considered murder and cannot be punished as such (the Geneva Conventions also make the same point).

The Republicans made a big big show of claiming that the fight against terrorism had to be conducted as a war, not as a criminal matter, and yet here we have a case where they are turning around and treating what is clearly a combat death as a homicide.

Stefan @11:16 - The case exists because he is Canadian, eh?

When Afghanis kill us, it's just war obviously. But when a Canadian does it, we scream bloody murder because if we let it go, they might make a habit of it...

Stefan said "What I've never understood about this case in particular is, how is this murder??? If you're in combat, and you kill an enemy fighter, it is not generally considered murder and cannot be punished as such (the Geneva Conventions also make the same point)."

Typical liberal, wanting to give Geneva convention rights to terrorists. The Geneva convention applies to those wearing uniforms and carrying arms openly who conduct their operations in accordance with the laws and customs of war. Just so we all know who we are talking about, this terrorist and his father were part of Al Quaeda and personally met with Osama Bin Laden.

What I've never understood about this case in particular is, how is this murder?

Its part of the unlawful combatant theory; since the detainees are allegedly unlawful combatants (similar, e.g., to spies), any combat they engage in is not lawful combat, but simple wanton mayhem.

the Geneva Conventions also make the same point

ISTR ranking members of the previous administration describing the Geneva Conventions, in the context of the war in Afghanistan, as "quaint".

>"applies to those wearing uniforms and carrying arms openly who conduct their operations in accordance with the laws and customs of war."

How about the French Resistance in WWII... they must have been bloody terrorist murderers too.

Oh, yeah, that's different... it's always different.

David:

Terrorist? He hasn't even been convicted of anything.. shouldn't that be "alleged" terrorist? Innocent til proven guilty, and all that, or did Bush remove that as well, during his reign?

It's true the father of Khadr was an associate of Bin Laden's, but the kid was "recruited" when he was 13, and captured when he was 15 - he was brainwashed by his dad into fighting for Al Queda.

Even if he did the "alleged" act, which I find dubious, since he's been in captivity for 7 years, and its only just now the Pentagon tried to charge him, his being a child soldier would mitigate all that. His right under the UN protocol on child soldiers has been violated - not to mention every other right that should have been afforded him.

At the most, he should be given a fair trial in either a US Court, or repatriated to Canada (which our government, a Bush ally, has been unfortunately reluctant to do but I'm sure Obama could persuade them), and let him either be tried with untainted evidence from torture. or he should be set free.

And most of all, he should be given deprogramming and rehabilitation.

How about the French Resistance in WWII... they must have been bloody terrorist murderers too.

In fact, that's what the Nazi occupiers called them.

But, as you point out, it's different because...um...well...just because shut up that's why!

Terrorist? He hasn't even been convicted of anything.. shouldn't that be "alleged" terrorist? Innocent til proven guilty, and all that, or did Bush remove that as well, during his reign?

Here's more on this dangerous, bloodthirsty terrorist, via Glenn Greenwald:

Suffice to say, Jawad's chief prosecutor at Guantanamo -- the Bronze-Star-recipient Lt. Col. Darrel Vandeveld, who since 9/11 has served in Iraq, Afghanistan, Bosnia and Africa -- became so repelled by the treatment to which Jawad was subjected, by the fact that virutally all of the evidence against him was severely coerced, and by the fact that there is "no credible evidence" to justify his detention, that he first demanded that Jawad be released, then, when Bush officials refused, unsuccessfully demanded to be relieved of his duty to prosecute, and then finally resigned. He has now become one of the key witnesses in Jawad's habeas proceeding, and you can (and should) read Lt. Col. Vandeveld's Sworn Declaration in Support of Jawad's Habeas Petition here. In Paragraph 2, he writes:

"It is my opinion, based on my extensive knowledge of the case, that there is no credible evidence or legal basis to justify Mr. Jawad's detention...."

To underscore how dubious and unreliable is the evidence against Jawad, how far away he is from a "hard-core terrorist," and how outrageous is his ongoing detention, Lt. Col. Vandeveld very poignantly wrote:

"Had I returned to Afghanistan or Iraq, and had I encountered Mohammed Jawad in either of those hostile lands, where two of my friends have been killed in action and one of my very best friends in the world had been terribly wounded, I have no doubt at all -- none -- that Mr. Jawad would pose no threat whatsoever to me, his former prosecutor and now-repentant persecuter. Six years is long enough for a boy of sixteen to serve in virtual solitary confinement, in a distant land, for reasons he may never fully understand."

Worst of all, Lt. Col. Vandeveld explains that he began to realize the grave injustice of prosecuting Jawad as he discovered long-concealed evidence proving just how brutal and continuous the abuse of Jawad has been, and how virtually all of the evidence against him was suspect at best and almost certainly was unreliably coerced....

http://www.salon.com/opinion/greenwald/

Considering that (as I understand it) Afghanistan didn't even have a military when we invaded, isn't it a little weird to prosecute this kid for not being part of an organization that didn't exist in the first place?

The military tribunals couldn't be as bad as the Nuremberg kangaroo trials, or the Saddam kangaroo trial, could they?

It's inappropriate for me to comment on political discussions and I try to always refrain from doing so (indeed I try to avoid anyone knowing my personal political opinions), but I think I can narrowly address the specific legal subject raised by the comments above. You need to actually try reading the Geneva conventions.

Common Article 2 applies to international conflicts between the regular militaries of states. Common Article 3 applies to internal conflicts with non-regular armed combatants. Per Hamdan (the original OLC/DOJ position was that neither Article 2 nor Article 3 applied...i.e. you were dealing with armed banditry and the like), CA3 applies. CA3 expressly permits the application of domestic law. Thus, a CA3 combatant can be charged for any violent act committed. CA3 simply says that they need to be treated humanely (not tortured and the like) and can't be executed (or otherwise punished) except by a court. So no summary executions. But a member of AQ or the IRA etc. who is captured on the battlefield is not protected the way a regular soldier is by CA3. They don't have a right to engage in hostilities. They do have a right to a form of due process when punished for engaging in hostilities.

I hope that helps.

I should further note that it is currently DOJ policy to apply CA3 to all conflicts that we are engaged in except when CA2 applies (i.e. CA2 applied to the Iraqi Army in OIF-1 but CA3 applies to AQI,JAM etc.)

"Considering that (as I understand it) Afghanistan didn't even have a military when we invaded, isn't it a little weird to prosecute this kid for not being part of an organization that didn't exist in the first place?"

I of course can't comment on an existing case.

But if there is no existing military force for one to join, then one can't take up arms as a combatant and expect to receive CA2 protection.

By the way, the U.S. has not ratified a Protocol to CA3 (even though most of the world has) that specifically limits CA3 protection to armed groups with organized leadership, territorial control etc. So most of the world does not recognize ANY GC protection for many insurgent/terrorist groups. (Customary international/humanitarian law applies of course, but not the Conventions. The U.S. actually takes a more liberal approach.)