Yesterday, a judge dismissed the charges against Omar Khadr, who was arrested at the age of 15 in Afghanistan. He is alleged to have thrown a grenade that killed an army medic and wounded three other soldiers. From what I can tell, these facts are not in serious dispute. The kid did what he is accused of doing.
The charges were thrown out because the Military Commissions Act of 2006 (the MCA) only applies to people who have been adjudicated to be Alien Unlawful Enemy Combatants. The "alien" and "unlawful" parts are new.
Khadr was adjudicated to be an enemy combatant by an earlier tribunal. The judge who threw out the charges said that this classification was insufficient.
This is a classic example of dealing with a loophole. I do not think there is any chance that Khadr will not be found to be an alien unlawful enemy combatant, so all that happened yesterday was a procedural roadblock.
Many critics of the Bush administration are quite pleased with the decision. I cannot figure out why.
Many Bush supporters are quite upset with the decision. I can see where they are coming from-- the grounds on which the charges were thrown out are flimsy. This case is a triumph of form over substance.
But I say that our law is fundamentally about process. We are guaranteed due process of law!
It is our observance of the exceptions and the loop holes that make us different from our enemies. Review Khadr's status. Review the status of the other 380 prisoners.
And then try them under military tribunals, just as every wartime president since George Washington has done.
(What got me thinking about this subject was this article.)