Omar Khadr is no innocent trapped in Guantanamo Bay because someone turned him in for the bounty. By all accounts, he is a genuine terrorist. But he was also just 15 years old when he was captured in Afghanistan (in a raid in which he killed Special Forces Sgt. Christopher Speer with a grenade), and he had apparently been brainwashed from childhood into fervently subscribing to jihadism.

We took him from the battlefield as it were, wounded so badly that it was unbelievable he was still alive, and we plunged him straight into our terrorist torture chambers, even before his wounds were healed. (Rolling Stone has a chilling account of his capture and the treatment we subsequently unleashed on this child, in gross violation of the Geneva conventions. Just charging an adolescent with war crimes violates the Geneva conventions. The torture and everything else was presumably thrown in just so that nobody could say we hadn’t thoroughly violated the namby-pamby Geneva conventions.)

Omar Khadr is now in the news again. Back in June, U.S. military judge Army Col. Peter E. Brownback III stunned the Bush administration during what was supposed to be a routine arraignment by declaring that he had no choice but to drop charges against Omar Khadr, one of the first two Guantanamo detainees to be brought to trial (under The Military Commissions Act). The charges had to be dropped because the tribunals set up under the Act were empowered only to try “unlawful enemy combatants”, and the Guantánamo detainees had all been designated — very formally, and with great pomp and ceremony — as “enemy combatants”.

A few weeks later, Col. Brownback affirmed his decision after the Bush administration filed a you-were-just-kidding-right? motion:

A U.S. military judge for the Guantanamo war crimes tribunals has refused to reinstate the charges against a Canadian prisoner accused of killing a U.S. soldier in Afghanistan.
[...]
A tribunal judge, Army Col. Peter Brownback, dismissed the murder and conspiracy charges against Khadr on June 4. He said he lacked jurisdiction to try him because Khadr had not been designated an “unlawful enemy combatant,” as required under the 2006 law that authorized military tribunals for foreign terrorism suspects.

Prosecutors asked Brownback to reconsider and reinstate the charges, but he ruled on Friday that they had presented no new evidence or arguments.

A military panel had declared Khadr an “enemy combatant” but Brownback said that did not meet the strict definition of the law that authorized the tribunals.

He said the distinction was critical because international law requires other types of trial for captives who are considered “lawful enemy combatants.”

“The term ‘unlawful’ is not excess baggage, and it is not mere semantics, it is a critical predicate to jurisdiction,” Brownback wrote in the ruling.

On Monday, the U.S. Court of Military Commission Review issued its first ever ruling:

A military appeals court sided with the Pentagon on Monday, overruling a judge who threw out terrorism charges against a Guantanamo Bay detainee.

The U.S. Court of Military Commission Review ruled that a military court set up by the Bush administration was the proper venue for deciding whether Canadian citizen Omar Khadr is an “unlawful enemy combatant” and trying him on terrorism charges.

The ruling reverses a military judge’s June 4 ruling that the tribunal system created by Congress did not have authority to try detainees unless they were first determined to be unlawful enemy combatants.

… Pentagon officials argued that the June 4 ruling was just a matter of semantics and was insufficient to dismiss the case.

Monday’s decision, the first ever by the newly formed appeals court, agreed.
[...]
The decision was written by Navy Capt. John W. Rolph, deputy chief judge of the military appeals court. Concurring were the panel’s other two judges, Army Col. Paul P. Holden Jr. and Air Force Col. David Francis.

Back on June 4, a different military judge — Navy Capt. Keith Allred — had dismissed charges against the only other Guantanamo detainee brought to trial, Salim Hamdan, invoking exactly the same reasoning. And now the U.S. Court of Military Commission Review has just decided that both these military judges were, indeed, kidding.

Funny how things work, though. The U.S. Court of Military Commission Review was set up after the June 4 verdicts were handed down. They were set up with the clear knowledge that their first task would be to review the Brownback and Allred verdicts. And, lo and behold, despite the clear, firm language employed by judge Brownback, the review court was able to find that it was just a matter of semantics after all, ha ha.

Amazing what results you can achieve when you get to stack the court with hand-picked judges.

And thus does the Bush administration and the U.S. military strike yet another blow for at justice.