Even the Pentagon wants to dismiss this as "semantics" and a "technicality." But it won't go away that easily. Because jurisdiction is fundamental to the function of any legal system, even one as cobbled together as the system created by the Military Commissions Act of 2006. Without jurisdiction, that is, without the authority to act over the defendant, no US court will act, at all. These two judges wisely upheld that basic tenet of the law. Congress may have shredded habeas corpus, but they can't destroy the concept of jurisdiction.
Here, in fact, is the language of the Act (courtesy of Wikipedia):
Sec. 948d. Jurisdiction of military commissionsAnd here's where the whole thing got hung up:
(a) Jurisdiction- A military commission under this chapter shall have jurisdiction to try any offense made punishable by this chapter or the law of war when committed by an alien unlawful enemy combatant before, on, or after September 11, 2001.
(b) Lawful Enemy Combatants- Military commissions under this chapter shall not have jurisdiction over lawful enemy combatants. Lawful enemy combatants who violate the law of war are subject to chapter 47 of this title. Courts-martial established under that chapter shall have jurisdiction to try a lawful enemy combatant for any offense made punishable under this chapter.
(c) Determination of Unlawful Enemy Combatant Status Dispositive- A finding, whether before, on, or after the date of the enactment of the Military Commissions Act of 2006, by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense that a person is an unlawful enemy combatant is dispositive for purposes of jurisdiction for trial by military commission under this chapter.Clear enough even a lay person could understand it. No jurisdiction, no trial. This is not a semantic difference. This is not a technicality. This is the law. It's not a bug; it's a feature. And the person responsible for it, is the person who insisted on it.
And that's the really ironic part of this, the "Thomas More" part where the devil turns round on you when the forest of the laws are leveled, is the devil of your own making. NPR was reporting there is no appellate procedure available, and the AP report almost contradicts it, so clearly this is so new and unexpected no one quite knows what's going on. But the government, the prosecution in these matters, is, according to NPR, thinking of appealing the ruling of these two judges. Only one problem: Bush made sure they did away with those nasty appeals. So there's nothing for the prosecution to appeal to, either. There is a provision for appeals, but it depends on the Administration to act first:
““§ 950g. Review by the United States Court of Appeals for the District of Columbia Circuit and the Supreme Court of the United StatesThat second provision refers to a previous part of the law:
(a) IN GENERAL.—(1)(A) Except as provided in subparagraph (B), the United States Court of Appeals for the District of Columbia Circuit shall have exclusive jurisdiction to determine the validity of a final judgment rendered by a military commission, pursuant to Section 1005(e)(3) of the Detainee Treatment Act of 2005.
“(B) The Court of Appeals shall not review the final judgment until all other appeals under this chapter have been waived or exhausted.
““§ 950f. Review by Court of Military Commission ReviewThis is the Court authorized to hear appeals; and until it does, the US Appellate Courts can't do anything. One problem: that Court does not yet exist.
(a) COURT ESTABLISHED.—(1) The Secretary shall establish a Court of Military Commission Review which shall be composed of one or more panels, and each such panel shall be composed of not less than three appellate military judges.
And what do you think the Appellate Courts will do with a lower court called hastily into existence precisely to rule on this issue? Anything short of shredding its jurisdiction will make this entire system a farce. The only recourse now is to start over again, from scratch.
Well, it's not like the detainees are going anywhere....
UPDATE: and yes, the world is watching:
The ruling seemed to galvanize Canadian opposition MPs who, until Monday, had mostly stayed on the sidelines as the Harper government pointedly refused to intervene on Mr. Khadr's behalf — unlike the British and Australian governments that arranged to have their detained citizens brought home.
"Whatever we may think about Mr. Khadr and his past, he is a Canadian citizen with rights," Liberal MP Michael Ignatieff said. "The Canadian government should take up his case actively," he added.