At the threshold: Jurisdiction
Perhaps the most critical legal issue in Noor’s prosecution is the one that will probably be argued at the next preliminary hearing in August. It involves an Article 5 hearing, where a conclusive determination will be made regarding Noor’s vulnerability to trial by military commission. This determination goes to the very core of the commission’s legitimacy; it involves whether or not Noor can be properly tried. It also implicates many of the facts that will be presented at trial to determine his guilt or innocence. Article 5 hearings take their name from the Geneva Conventions provision that requires a “competent tribunal” to determine whether a captured belligerent is an illegal combatant and can therefore be denied procedural protections that would otherwise be available. If Noor, who is accused of being a weapons instructor and deputy commander of a terrorist training camp in Afghanistan, does not belong in the category of “unlawful belligerent,” he might still be found guilty of committing crimes of war. But he will fall outside the jurisdiction of the military commission, a commission responsible for detaining him for many years already.