Odds and Ends on Khadr [and Hamdan]

Marty Lederman

Jack asked me to weigh in on the Khadr case. I'm a bit short on time just now, and don't have a great deal to add to Jack's broader comments, so my principal recommendation is to keep abreast of what Bobby Chesney and the folks over at National Security Advisors, as well as Tony Arend, have to say. They are covering the case more thoroughly, and I recommend their blogs to you for further details and thoughtful reactions.

{UPDATE: The Times reports that a separate judge dismissed the charges against Salim Hamdan on teh same grounds.]

And so, just a few very rough notes of clarification here:

1. According to the MCA, military commissions can only try detainees if, at a minimum, they (i) are "unlawful enemy combatants," and (ii) have violated one or more of the Act's specified crimes, each of which is ostensibly supposed to reflect a norm under the laws of armed conflict. See sections 948c, 948d(a)-(b).

2. Judge Brownback's ruling -- which was sua sponte; Khadr's lawyer did not raise the issue -- is that the first criterion is not yet satisfied, i.e., that although a CSRT several years ago concluded that Khadr was an "enemy combatant," he has not yet been determined to be an unlawful enemy combatant.

3. The government apparently argued that the military commission itself could simply make the necessary finding that Khadr's combatancy was unlawful. Judge Brownback declined this invitation. Indeed, he did not even address the MCA's definition of "unlawful enemy combatant," in section 948(a)(1)(A)(i) of the MCA. Instead, he held that the determination of status had to be made by the Pentagon's CSRT -- not the court -- in the first instance, before the military commission's jurisdiction can kick in. This ruling was based on section 948d(c) of the MCA, which provides that "[a] finding, whether before, on, or after the date of the enactment of the Military Commissions Act of 2006, by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense that a person is an unlawful enemy combatant is dispositive for purposes of jurisdiction for trial by military commission under this chapter."

If I understand it correctly, the judge's ruling appears to be premised on the notion that the word "dispositive" in section 948d(c) means "necessary," and that the military commission itself is not the sort of "competent tribunal" described in that section. Hence, the military commission cannot take jurisdiction over the defendant until after another tribunal has determined that he is an unlawful belligerent.

4. As Bobby Chesney notes, this is not exactly an obvious reading of the statute. (I would note, however, Judge Brownback's not-unreasonable emphasis on section 948d(b), which provides that "military commissions . . . shall not have jurisdiction over lawful enemy combatants." This might be read to foreclose such a commission from taking "jurisdiction" over a presumptively lawful combatnat in order to adjudicate whether the belligerency was in fact unlawful.)

What I think the judge was getting at, however, was a more functional, structural reading of the MCA. In a case such as Khadr, because of the sorts of charges brought against the defendant, a preliminary finding of unlawful belligerent status would be virtually equivalent to a finding that the defendant is guilty of the war crimes as charged. This is so because the principal charges against Khadr are that he engaged in combat in Afghanistan -- such as setting land mines, shooting Afghan milita members, and throwing a grenade that killed a U.S. Sergeant -- "without enjoying combat immunity." (The charges themselves are framed as murder, "conspiracy," provision of "material support" for terrorism (Khadr's own services in battle) and spying.)

The charging document does not specify why Khadr did not "enjoy combat immunity" the way that most soldiers do -- that is, why his combat activities amounted to war crimes. I imagine the allegations will be that Khadr performed such activities while failing to wear a uniform or insignia and/or while failing to carry his arms openly (as well as collecting intelligence "by clandestine means or while acting under false pretenses"). If these facts could be proved, they might establish violations of the laws of armed conflict (putting aside the question of whether "conspiracy" and "material support for terrorism" of the sort alleged here are fairly viewed as war crimes that can be tried by military commission).

But those facts are precisely those that would be necessary to establish that Khadr is an "unlawful" enemy combatant in the first instance, and thus subject to commission jurisdiction. Judge Brownback quite understandably assumed that Congress did not intend for the military commission itself to make such a preliminary adjudication, simply in order to provide itself with the jurisdiction to convene a trial to address the very same questions under more elaborate and more protective evidentiary and procedural rules.

Instead, Judge Brownback in effect reads the MCA to require that before a defendant can be convicted of a war crime, two different tribunals must determine that his combatancy was unlawful.

[UPDATE: Upon further reflection and consulation, I'm not sure I was quite accurate about this. A finding that Khadr or Hamdan was an unprivileged combatant -- in the sense of not being entitled to POW protections, and not having immunity from prosecution for domestic-law crimes such as spying and material support -- would not be equivalent to a showing that Khadr or Hamdan had done anything unlawful. Indeed, Hamdan, for example, may well have been unprivileged; but the charges against him might not establish any crime that existed at the time of his conduct. My broader observation still holds, however -- a jurisdictional finding that Hamdan or Khadr had acted unlawfully would probably be not very different from the ultimate question that the tribunal would be asked to resolve on the merits. The larger concern -- which might also be animating what the judges did here -- is that, with the exception of the spying charge against Khadr, it is not at all clear that what Khadr or Hamdan are alleged to have done here constitute "offenses that have traditionally been triable by military commissions," which is, per section 950p(a), what the MCA is nominally suppose to cover.]

5. A prosecuting attorney said that he would appeal the jduge's ruling. Under the new system, the prosecution has 72 hours to appeal, but reports are that the court designated to hear the appeal--the Court of Military Commissions Review — doesn't yet exist, and so a timely appeal might be a bit difficult.

6. This could mean the virtual cessation of military commissions for GTMO detainees, at least until the CSRTs are reconvened in order to make determinations that the detainees are unlawful enemy combatants.

7. This is hardly the most disturbing thing about the Khadr case. According to Phil Zelikow, under the Administration's "new paradigm," military commission trials are supposed to be reserved for the big fish directly involved in terrorist activities, against whom such trials have historically been used -- "for major war criminals and al Qaeda’s leaders."

That hardly describes this case.

In almost any other armed conflict, the military probably would not think to try even an adult for most of the sort of battlefield conduct at issue here. It appears that the only difference in this case is that Khadr was not in uniform -- which hardly seems a good enough reason to treat his battlefield combatancy as a war crime. (The spying charge, on the other hand, is similar to charges that have been tried by military tribunals in past conflicts.)

Moreover, Khadr was fifteen years old when we captured him. As Victor Hansen and Lawrence Friedman write:

Even assuming that Omar Khadr did in fact throw a grenade at U.S. forces during a firefight in Afghanistan, he clearly does not fit into the category of the “worst of the worst” that the administration claims are being detained and prosecuted at Guantanamo. At most, he was a 15 year-old foot soldier doing the bidding of much more dangerous and culpable terrorists. . . . Why . . . is the U.S. spending time, effort and resources, and squandering what little international goodwill it may still enjoy, on prosecuting a 15-year-old alleged foot soldier of Al Qaeda? Why weren’t these foot soldiers “turned” and used to go after mid-level and senior members of Al Qaeda? . . . . It seems to us that this prosecution of Omar Khadr is really emblematic of the complete failure of Guantanamo and the military commissions system. While many of the “worst of the worst” remain at large, the U.S. seeks to prosecute a child by military commission who, if he were an American citizen would not be subject to courts-martial jurisdiction because of his age.

Posted 10:39 PM by Marty Lederman [link]