Tribunals Suspended (Again)

Clearly the best commentary about today's huge news of charges being thrown out in the cases of child-soldier Omar Ahmed Khadr and driver Salim Ahmed Hamdan come from Jack Balkin of always enlightening Balkinization. He writes: (emphasis mine)

There are two types of enemy combatants. Lawful enemy combatants are entitled to all of the protections of the Geneva Conventions, in particular the protections of the Third Geneva Convention, which lays out the treatment of prisoners of war. Unlawful enemy combatants are entitled only to the protections of Common Article III. If the CSRT hearings only determined that the detainees were enemy combatants but not that they were unlawful enemy combatants, then, as I read Article 5 of the Third Geneva Convention, the detainees are entitled to all of the protections of the Third Geneva Convention until such time as they are determined not to be prisoners of war.

Given the treatment the detainees have received at Guantanamo up to this point, the U.S. would be in clear breach of the Geneva Conventions with respect to all of these detainees. (Indeed, even if the detainees were adjudged unlawful enemy combatants, the U.S. is probably in breach of Common Article III. But let's not go there.).

[...]

[T]he Administration has screwed up the second group of tribunals it designed. I would say this is a disgrace, except that the Military Commissions Act which sets up the new tribunals is the true disgrace. This latest episode is a carbuncle on a wart on a disgrace.