Hamdan Redux: Government Asks Judge to Reconsider Decision

Marty Lederman has an fascinating analysis over at Balkinization regarding the the government's appeal in the recent Hamdan and Khadr cases. The latter concerned the decision by U.S. military judges to dismiss charges against Salim Ahmed Hamdan of Yemen and Omar Khadr of Canada. They were charged as terrorists and labelled "unlawful enemy combatants", and were to be among the first cases to be brought before Bush's kangaroo military commissions. According to AP:

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....

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."

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.)