Salid Ahmed Hamdan, the Guantánamo Bay detainee who was the subject of the pro bono efforts of the defense team that last month received the King County Bar Association’s Outstanding Lawyer Award,1 has obtained a dismissal for lack of jurisdiction of all charges and specifications pending against him before the Military Commission.2
In 2004, a Combatant Status Review Tribunal (CSRT) determined that Hamdan was properly detained as an “enemy combatant” under the definition established by the Deputy Secretary of Defense’s Order Establishing Combatant Status Review Tribunals.3 More than two years later, the Military Commissions Act (MCA) became law. The MCA limits jurisdiction of military commissions to offenses made punishable by the MCA or by the law of war when committed by “an alien unlawful enemy combatant,”4 which is more restrictive in its definition than the definition of “enemy combatant” under the order that established the CSRT.5
Hamdan was charged under the MCA with being an “alien unlawful enemy combatant” on May 10.6 The charges were dismissed by the Military Commission on June 4 for four reasons: 1) the finding that Hamdan was an “enemy combatant” was made to determine whether he was properly detained, not to determine if he was subject to trial by military tribunal; 2) the CSRT finding used a different standard than the standard in the MCA; 3) the CSRT finding preceded the adoption of the MCA by two years, and Hamdan’s participation in the CSRT “may well have been much different” if he had known it would be used to impose criminal jurisdiction over him before a Military Commission; and 4) the President’s determination in 2002 that members of the Taliban or al-Qaeda are “unlawful combatants” applied to them as a group, and was not an individualized determination regarding Hamdan.7
The Military Commission noted, “There may well be evidence in the Government’s possession that could readily support a determination that the accused is subject to the jurisdiction of this Court.” However, that determination had not been made by a CSRT, so the motion to dismiss was granted without prejudice.8
A Reuters report dated June 5 stated that the White House disagreed with the rulings and that the Defense Department “will make a determination as to whether it’s appropriate to file an appeal or not,” according to White House spokesperson Tony Fratto, as quoted by Reuters.
1 See King County Bar Association Bar Bulletin, June 2007, at 13; “Gitmo Team Hits the Heights,” King County Bar Association Bar Bulletin, August 2006, at 1.
2 See Decision and Order — Motion to Dismiss for Lack of Jurisdiction dated 6/4/07 (“Decision”) at 3.
3 Id. at 1.
4 10 USC § 948d(a).
5 Decision at 2.
6 Id. at 1.
7 Id. at 3.
8 Id.
