Peter Brownback

“ Thus, in the MCA, Congress denominates for the purpose of establishing jurisdiction two categories of enemy combatants ­ lawful and unlawful. A military commission only has jurisdiction to try an unlawful enemy combatant. ”

“ Congress provided in the MCA for many scenarios none anticipated that the military commission would make the lawful/unlawful enemy combatant determination. b. Second, a person has a right to be tried only by a court which he knows has jurisdiction over him. If the military commission were to make the determination, a person could be facing trial for months, without knowing if the court, in fact and in law, had jurisdiction. 9. Persons familiar with the court-martial system might state that jurisdiction is always assumed by the court-martial and it is attacked only by motion. ”

“ If there were no two-step process required to try a person under the MCA, then a prosecutor could swear charges, the convening authority could refer charges, and a military commission could try a person who had had no determination as to his status whatsoever. ”