Who Counts as an “Enemy Combatant” Under the MCA?
But who counts as an “enemy combatant” under the MCA? Both military judges and the recent Fourth Circuit decision have been careful about parsing the statute’s language. Last week, two military judges – Navy Capt. Keith Allred and Army Col. Peter Brownback – dismissed charges against two Guantánamo detainees, Omar Khadr of Canada, and Salim Hamdan of Yemen, who had been set to be tried before military commissions. The reasoning was that the men were just garden-variety “enemy combatants,” not “alien unlawful enemy combatants” as required by the MCA. (Readers may remember Hamdan as the victor in a Supreme Court decision issued last June, and wonder why he was before a military commission in the first place. The answer is that while the Court held that the President could not try detainees by military commission without Congressional approval, Congress gave that very approval in the MCA.) Meanwhile, the Fourth Circuit panel held – as noted above – that al-Marri did not fall within the se
