Plea to U.S. Government: when neck-deep in quicksand, stop digging!

Guest Blogger

International Legal Director
Human Rights First

Yesterday, the Department of Defense released criminal charges against Guantanamo’s youngest prisoner to be charged, 20-year-old Omar Khadr. The charges provide a clear window into the mess created by the Military Commissions Act of 2006 (MCA). That law fails to distinguish properly among legal frameworks applicable to trials of persons captured in 1) international armed conflict, where international humanitarian law, or the law of armed conflict, applies; 2) non-international armed conflict, where a limited provision of the laws of armed conflict – Common Article 3 of the Geneva Conventions - and international human rights law and domestic criminal law apply; and 3) no armed conflict, where domestic criminal law and international human rights law apply. That failure is most apparent in the MCA’s overly-expansive definition of an “unlawful enemy combatant,” who can be subject to its jurisdiction; it encompasses people who are neither enemies nor combatants and have no business being tried by a military court.

The MCA’s jurisdictional defect is compounded by the procedures it prescribes for military commissions, which do not meet either U.S. constitutional due process standards or fair trial requirements that the U.S. is obligated to respect under international law. The flaws don’t end there. The MCA also purports to restrict federal court review of the military commissions and, worse, to strip detainees of their habeas right to challenge detention. The law was passed shortly before last fall’s elections by a Congress that barely stopped to debate its content or harmful consequences because it was under the thrall of the administration’s claimed urgent need to try the 14 so-called “high value detainees” who had just been transferred from secret CIA detention to Guantanamo. None of the 14 has since been charged.

Khadr’s attorneys have asked the Supreme Court to review the constitutionality of the MCA’s habeas-stripping provision as well as his right to challenge the jurisdiction of the military commissions themselves. The Court will consider the appeal on Friday and has an opportunity to stop the MCA’s corruption of legal frameworks.

Omar Khadr was born in Ottawa, Canada, and was fifteen when he was captured by the U.S. and brought to Guantanamo. It is alleged that he lived with his parents in Osama Bin Laden’s compound in Afghanistan and received weapons training since early childhood. In July of 2002, the compound his family was in was attacked by U.S Special Forces. Khadr is said to have leapt from hiding and thrown a grenade, which killed Sgt. Christopher Speer. Omar was shot three times and left nearly blind in one eye.

More than five years of imprisonment later, he now faces charges under the MCA. The charges against Khadr http://www.defenselink.mil/news/Apr2007/KhadrReferral.pdf
do not allege acts of terrorism, but rather, that he received military training and engaged in hostile acts against American forces that are not unlawful in wartime. The charges exemplify the MCA’s perversion of the laws of armed conflict as well as of the principles of criminal responsibility.

Here’s why the charges are inappropriate:

1. Murder: The charge is killing a U.S. soldier. Under the law of war, the victim is a military objective in armed conflict, so his homicide cannot be considered a “violation of the law of war,” as charges allege. Clearly, the prosecution thinks that proof that the killing was in “violation of the law of war,” as required by the MCA, is satisfied by the alleged fact that Khadr is, in the government’s words, an “alien unlawful enemy combatant.” This term does not exist in the law of armed conflict and cannot be the hook for criminal responsibility for any act that occurred prior to the passage of the law under which Khadr is charged. The law – the MCA – was passed in 2006 and Khadr’s actions are alleged to have occurred in July of 2002. The charge runs afoul of the principle of legality, or more specifically, the prohibition against ex post facto prosecution.

What the government misstates and misconstrues here is the consequence of the fact, if proven, that Khadr is an “unprivileged belligerent.” This term, which does exist in the law of armed conflict, merely describes someone who does not qualify for prisoner of war status when captured in international armed conflict. Unprivileged belligerency is not a violation of the law of war for Omar Khadr any more than it would be for you to fight against an invading army to protect your home and family. If the government wanted to charge Khadr with murder, it could do so under U.S. criminal law; it chose not to.

2. Attempted murder: This charge, too, alleges that the target was “U.S. or coalition forces,” which are legitimate objectives under the law of war. Like the murder charge, this one also runs afoul of the prohibition against ex post facto prosecution.

3. Conspiracy: Also not a violation of the law of war prior to the MCA’s passage and therefore also violates the prohibition against ex post facto prosecution.

4. Providing material support for terrorism:
a) Another crime that is not recognized under the law of war prior to MCA passage (does this sound familiar?) and therefore,violates the prohibition against ex post facto prosecution.

b) In addition, there are two “specifications” (counts) of this charge. The first alleges material support to an organization “known by the accused to be an organization that engages in terrorism.” “Terrorism” is defined as “kill(ing) or inflict(ing) great bodily harm on one or more protected persons, or intentionally engag(ing) in an act that evinces a wanton disregard for human life . . . .” But the specific acts of “material support” that Khadr is accused of are either all acts that, under the law of war, are legitimate targeting of military objectives, or are allegations of mere training without mention of intended targets. Thus, to satisfy the element that the accused knew that the organization engages in terrorism, the prosecution will have to prove something more than what is alleged in the specification.

c) The second specification is even more problematic for the government than the first. It alleges that the Khadr “knew or intended that the material support or resources” he provided (to wit: himself) were to be used “in preparation for or carrying out an act of terrorism.” But the acts that are alleged to constitute the “material support” are the same as above (all targeting military objectives, or mere training without mention of intended targets). If the government concedes that the context is armed conflict (as it does and as it must to establish MCA jurisdiction), then this targeting or training cannot be said to be against “protected persons” (the targets were neither civilians nor others hors de combat). Whether the government intends to proceed on this, or on the other leg of the “terrorism” definition (“intentionally engag(ing) in an act that evinces a wanton disregard for human life”), it once more runs up against the principle of legality/ex post facto prohibition, because any such training or targeting of military objectives was not a violation before the MCA made it so.

5. Spying: Spies, like civilians who participate in hostilities without a privilege to do so, do not receive prisoner or was status upon capture in international armed conflict. However, like unprivileged belligerency, spying was not a violation of the law of war before the MCA. Therefore, this charge also violates of the ex post facto prohibition.

The solution to this mess is to return to the tried and true procedures and substantive crimes available for use in U.S. federal courts or, in the appropriate case when the law of war properly applies, courts martial. The procedures in those courts comport with international standards of due process required by both the laws of armed conflict and human rights law. They lend a credibility that the military commissions, with their admissibility of hearsay evidence and of statements obtained through coercion, cannot achieve. In addition, the expansive list of crimes that can be charged in federal court, as compared to the more limited number and type of crimes that are actual war crimes rightfully chargeable in military commission proceedings, will make for true accountability for those who commit terrorist crimes.

UPDATE: 1. A recurring theme expressed by critics of my post is resistance to the fact that unprivileged belligerency is not a crime under the law of armed conflict and was not a crime at the time of Khadr's alleged acts under the law now being applied to Khadr because that law, the MCA, did not exist at the time of his acts. Perhaps these critics are so thoroughly saturated with the administrations's conceit of terminology - "unlawful combatant" - that they find it difficult to absorb the fact that it takes more than an executive declaration to make something a crime in the U.S. Yes, Congress can define criminal violations of the law of war (within limits, I suppose - could they make it a crime for enemy combatants or enemy civilians to not cover their mouth when they cough?). And Congress presumably can do so in ways that are inconsistent with pre-existing international law, including treaty obligations, so long as they don't treat on jus cogens norms. But Congress cannot apply new criminal laws retroactively. The prohibition against ex post facto prosecution is one of the bedrocks of domestic criminal and international human rights law. The fact that Khadr would not be entitled to PoW status is simply not dispositive of the question of his criminality for hostile acts he may have committed before passage of the MCA.

2. The fact that the victim, a U.S. soldier, is a combatant, means that he is a military objective (no sic) in situations of armed conflict. The flip side of combat immunity (the combatant's right to kill without regard to criminal laws) is the risk of being targeted. The fact that the person doing the targeting does not, likewise, enjoy combat immunity does not, alone, make him a criminal.

3. Civilians can, indeed, be detained in international armed conflict without having engaged in hostilities. See the 4th Geneva Convention.

4. If the government has admissible evidence that Khadr provided material support for terrorism at a time that that act was criminal in U.S. law, or that he initiated violence against an American citizen, then he could be charged with any number of domestic criminal offenses in federal court. However, if the evidence for "material support" consists of his being in and training with an Al Qaeda camp as a minor because that's where he lived with his parents since childhood, would it not reflect poorly on the U.S. to bring such a charge? And if the evidence for charges relating to his hostile acts indicates that he was acting in self-defense, then his conduct is as justifiable as would be an assault on a police officer who commits an unprovoked attack on a person.

5. As for spying: no, it is not a violation of the laws of war to surreptitiously collect information about the enemy. Yes, spies can be captured and tried for violations of applicable domestic law, but they are not war criminals and "spying" cannot be tried under the MCA for conduct that occurred, and that was not illegal, before the law's passage.

6. Levee en masse does not depend on the illegality of the attack for its legitimacy. The laws of war abhor making jus in bello rules (conduct in war) vary on the basis of jus ad bellum factors (the legitimacy of use force).
Posted 11:59 AM by Guest Blogger [link]