Hamdan's military judge, Navy Capt. Keith Allred, said the detainee is "not subject to this commission" under legislation passed by Congress and signed by President Bush last year.
Now the government is appealing Capt. Allred's decision, and Marty Lederman has read the motion on Hamdan and finds:
The oddest thing about the Hamdan motion, however, is that the government never really gives a persuasive factual account of why Hamdan is an enemy combatant, let alone an "unlawful enemy combatant" as that term is defined in the MCA....Go read the entire piece. If you're ambitious you can read the motion on Hamdan, and also the motion on Khadr. (Lederman did not make an analysis of the latter, having not read it yet. But one suspects that much the same non-evidence will be presented there.)
More to the point, as I read it, those alleged facts simply do not establish, as the MCA requires, that Hamdan "purposefuly and materially supported hostilities against the United States."