From the Department of Unintended Irony

by Kevin Jon Heller

Omar Khadr’s trial began a couple of days ago at Guantanamo.  Here is what the prosecutor said in his opening statement:

This trial is about holding an Al Qaeda terrorist accountable for his actions and vindicating the laws of war.

Two small problems with this.  Throwing a grenade at U.S. soldiers is not an act of terrorism.  And four out of the five charges against Khadr — murder, attempted murder, conspiracy, and material support for terrorism — are not, in fact, violations of the laws of war.

Other than that, the prosecutor was spot on.

http://opiniojuris.org/2010/08/16/from-the-department-of-unintended-irony/

15 Responses

  1. Strange, “vindicating the laws of war” would be prosecuting those involved in violating the Geneva Conventions by torturing detainees. Silly me for thinking that.

  2. Kevin,

    I am very conflicted about the Khadr trial.  A few years ago I wrote an article for a Canadian newspaper, commenting on the absurdity of the proceedings to that point and also arguing that the Canadian government should insist on a civil trial for Khadr.  It is quite clear that is not going to happen and I understand from various commentary that the Obama administration does not believe it could secure a conviction of Khadr because of various evidentiary problems and because the confession it secured was “coerced” i.e. the product of torture.  Presumably Khadr would have good arguments based on his age and combatant immunity as well. 

    As embarrassing as all this is for the Obama administration, I think it should been seen as a bigger black mark against Canada.  Two successive Canadian governments (Liberal and Conservative) have done nothing to pull Khadr out of Guantanamo.  He is the only Western stuck in that farcical system of justice and he was, of course, only 15 years old when he committed his alleged crime.  The Khadr case is so absurd that the collapsing of his military-appointed attorney barely made the newspapers.

    The Supreme Court of Canada ruled that Khadr’s rights under the Charter of Rights and Freedoms were violated because of Canadian involvement with the coercive interrogations.  The Canadian government still refuses to intercede.

    I really don’t put much blame on Obama for this.  Because of the Bush administration’s policies, a civil trial likely won’t work.  You’ve documented the problem with charging Khadr for crimes of war.  What then exactly is supposed to be done with him if Canada doesn’t want him?

    What complicates matters is that whether or not one views Khadr as a victim because he was forced to be a child solider or stone-cold murderer, there is no question that if he were released that he would pose a danger to the United States.   For this reason, my preference would be for him to be returned to Canada where he could be closely monitored by the authorities there.   (His family is already under constant surveillance by Canadian security agencies).  But, as I said, Canada doesn’t want him. 

    Does anyone have any good suggestions as to what should be done with Khadr?

  3. One could argue that spying is not really a violation of the law of war, either.  Traditionally, those captured behind defensive lines acting as a spy could be punished for it, but only because of how dangerous it is for the armed forces being infiltrated, not because it violates international law.  Is Khadr suspected of having secretly and under false pretenses passed through U.S. lines to lurk in or near an encampment of some sort?  Or perhaps the United States was an occupying power at the time of the offense, such that the whole territory could be considered within U.S. lines?  (I don’t know the answer to this question).

  4. 1. Send him back to Canada.
    2. Charge him with any crime that applies in Canada to him, if applicable.
    3. Rehabilitate him.
    4. Watch him very closely.  Ban on his travel to the US is pretty obvious but I figure I should put that in.  Suspect he would be banned from traveling to a whole bunch of places.
    5.  Investigate and prosecute those Canadian intelligence folks who cooperated with his torture.
    6. Suck it up Canada.  (Boorish neighbor from below speaking here).
    Best,
    Ben

  5. Milan — Under the 2009 revision of the Military Commissions Act, statements of an accused must be voluntary in order to be admissible (with one exception for point of capture statements not applicable in the Khadr case).  In denying the defense motion to suppress Khadr’s statements, the judge found the statements the Government was seeking to offer were, in fact, not the result of torture or coercion, but rather were voluntary.  Observers are of course free to disagree with the judge, but it is misleading to say the judge has allowed the use of coerced statements, when in fact he has found to the contrary.

  6. Captain,
    With respect, I am with the Supreme Court of Canada on this one.  Here is what the Court wrote, “Interrogation of a youth, to elicit statements about the most serious criminal charges while detained in these conditions and without access to counsel, and while knowing that the fruits of the interrogations would be shared with the U.S. prosecutors, offends the most basic Canadian standards about the treatment of detained youth suspects.”
    Perhaps even more importantly, the Supreme Court noted that Khadr had been subjected to approximately three weeks of scheduled sleep deprivation prior to giving his statements.
    I am not surprised that a military judge would nevertheless view Khadr’s confession as “voluntary.”  Indeed, this is precisely why Khadr is appearing before a military tribunal as opposed to a civilian court.

  7. This exchange is a perfect example of the perniciousness of the military commission process.  In whatever modified form (including 2009), it is carefully constructed to try to give “enough” of the “look and feel” of valid process without being one of the standard processes of courts or court-martial.  Each word of the statute – especially familiar sounding words – are words to be interpreted in this new space.  Each act of discretion by the judge is in the context of a completely new system outside of the beaten paths of the court-martial or the court system precedents.  The type of appellate review to be done is not the same as the appellate review of a court-martial or a court case.  Everyone who puts it in place can point to this or that word that resonates to each of us out of court-martial or court proceeding memories, but in fact what is going on is neither of those regularly constituted procedures. 

    I can see the military judge/Supreme Court of Canada difference as not a surprise.  The judge is in a system without its own precedents – he is making up the practices as he goes along (with lots of legal sounding arguments being made on both sides) with a freshly minted procedural playbook.  He/She is doing it no doubt to the best of his ability but he operates within the constraints of the process he is in.  The Canadian Supreme Court comes to this from its longer history and traditions and says with more authority in so many words “judicial forms AND judicial norms.”   The Military Commissions are more about what Bush used to say “we are giving them more process than they gave the persons they killed” – a potent trope that speaks of a kind of moral superiority but which in fact is perverse and absurd - alleged criminals do not provide process to their victims.

    There is a reason that all of Khadr’s lawyers are reported to have said to him that this is a system set up to convict him – not give a fair trial.

    Best,
    Ben

  8. Kevin-As I believe some combination of me, you and John Dehn have discussed, the MCA is a venue statute allowing for the prosecution of violations of domestic (US law). I am curious on whether those with angst over Khadr have the same thoughts on passive personality jurisdiction in general or if its uniquely Khadr concerns.
    I think a singular focus on the broader issue of the laws of nations, without mention of the municipal conceptions derived from, and implementing, the LOW, is, if not misplaced, then at least incomplete.

  9. Jen,

    Spying was once considered a violation of the laws of war.  It lost that status somewhere in the mid-20th century.  It is also my understanding that, like treachery and perfidy (the meanings of which have varied over time), it was punished because it was considered to be an act done in bad faith.  Thus, soldiers in uniform collecting intelligence behind their enemy’s front lines were not punished, simply captured (or killed).  Soldiers not in uniform behind their enemy’s lines were considered spies and punished (for concealing their identity and purpose).  The Lieber Code is fairly clear on all of this.  I don’t think any of it is relevant to Khadr’s case.

    I am not going to comment on the justness or propriety of military commissions at this point.

    Kevin,

    Without necessarily disagreeing with your broad underlying concern, I must disagree with your articulation of it.  It is quite clear that some law of war violations are not international war crimes.  Thus, the laws of war may be vindicated by a state punishing its nationals for these lesser international humanitarian law (IHL) violations.  The key question is whether a state may appropriately punish enemy foreign nationals for lesser IHL violations — if indeed they be (and perhaps also whether it should do so while allowing its own nationals to engage in similar violations with impunity).

    Since the dawn of the nation state and the writings of Grotius, engaging in armed violence without proper state authority (what Grotius called “private war”) has been unlawful unless acting in self defense (including defense of others).  This remains true to this day of non-state actors engaged in armed conflict.  While their simple armed hostilities are not “war crimes” unless perfidious, they have no right to engage in armed violence and can be punished for doing so.  The question is not whether but by whom and in what forum. 

    We can debate whether engaging in such unlawful violence should today be considered a law of war violation (based upon the lack of lawful authority) or a simple domestic crime.  If spying lost its status as a law of war violation, so could this type of conduct.  However, such armed hostilities were certainly unlawful and historically considered a law of war violation in the U.S. and Europe. 

    The claim of irony aside, the much more significant question to me is whether Khadr can claim that he was acting in self defense.  From what I know of the facts, it seems a plausible claim.  I would certainly be interested in your take on it.

  10. There’s no question Omar Khadr was raised by a man who had connections to Bin Laden and introduced his family to him when Omar was ten.  They lived near the Bin Ladens for a while and the children played together.  But how does that make Omar Khadr an “Al Qaeda terrorist” when he isn’t even accused of participating in an act of terrorism?  As a matter of fact, even his father was never convicted of terrorism although the Pakistanis once arrested him on suspicion when the Egyptian embassy was bombed, but they released him.  (Khadr’s father was an Egyptian Canadian who raised his family mostly in Pakistan and Afghanistan having taking up Afghan humanitarian causes when the Russians invaded).

    There’s no question Omar Khadr participated in the Afghan insurgency, having been sent on a mission by his father with the head of a Lybian faction, in the summer of 2002, but how does that make any of the charges against him war crimes?  As for the spying charge, I believe he told interrogators he hung around road sides and airports observing the numbers and directions of military vehicles.  This wouldn’t qualify as sneaking behind enemy lines and posing as a civilian to gather secret information, to my mind.

    The Prosecution argued that Khadr was guilty of “perfidy”, pretending to be a civilian to gain the enemy’s confidence, but the Defence pointed out that the Prosecution itself claimed that Khadr, when confronted, strapped on an ammunition vest and said he would die fighting, hardly posing as a civilian. 

    John Dehn had an interesting article here in April explaining that the US may be actually charging Khadr under its own domestic laws of war, not international law, US laws that applied to people taking up arms against the US within its own territory.  How such laws can be applied against residents of foreign countries when the US invades them is beyond me, an issue Mr. Dehn is apparently studying and plans to address in a future article.  I’m watching for it.  But, it seems that’s what the US government is considering, since the Manual they released on the eve of the resumption of Khadr’s trial earlier this year has a comment indicating that a person can be charged with violating the laws of war even without violating the international laws of war.  See also the article by military lawyer David Frakt, who appeared before Congress on this issue, at the Huffington Post on Khadr and the Manual.

    The lengths to which the US is going to find some justification for charging a then 15 year old insurgent, contrary to international law and common sense,  not to mention common decency, is truly mind boggling, as is the lengths the Canadian Conservative minority government is going to fight court orders to seek repatriation. 

    There has never been any indication by officials that Khadr was irrevocably committed to jihadist ideology at 15, just the opposite in fact.  There’s a report from Canadian consular officials who consulted with Gtmo staff and concluded otherwise.  God knows, he may be dangerous at this point after 8 years in Gtmo with adult detainees, tormented by a ludicrous legal case if not physically tortured, but I’ve never heard of anybody with any knowledge of him even suggesting that.  The government’s purpose seems to be less about security or furthering the fight against terrorism (this case certainly doesn’t do that), and more about proving a point, that it can somehow legally charge people who fight against its invasions of foreign countries with crimes, and try them in special courts to make convictions easier, if it so chooses, whether they are war crimes under international law or not.

  11. Diane (and anyone else interested in the aforementioned article),

    I must confess that I have written a draft article on the application of municipal criminal law in extraterritorial armed conflict but have been unable to invest the necessary time to refine and format it.  Part of the reason for that is that I have also begun a different article that considers evidence and arguments for placing military commissions in a different theoretical perspective.  I may try to post a summary of my key points of analysis on the former subject in the not-too-distant future.  The latter article may ultimately be more accurate, more interesting and ultimately more important to the legal and policy questions surrounding the use of military commissions.

    My available time is limited by the fact that my semester has already begun, and that I am seeking a new faculty position for next year.  (My current position has no research and limited administrative support.)

    My best to all….

  12. John, Thanks for your response.  I’m looking forward to your articles, whatever conclusions you may reach.  

    I do find the legal issues very interesting and I appreciate reading the opinions of knowledgeable people such as yourself.

    BTW, I think there’s an argument that Khadr was entitled to POW status under Geneva, the last point that refers to fighters who respond to an invasion, the only requirement being that of carrying arms openly when confronting the enemy.  According to the Prosecution he seems to have done that.  His nationality is an issue I think, under the Additional Protocols, but although he was born in Canada he lived much of his life in Afghanistan, according to background information, because his parents chose to raise their family there and in neghbouring Pakistan.  I read that the Yugoslavian Tribunal recognized citizenship equivalency for residents.

    I also think that at the time Khadr fought the war was of an international character because it was during that two month period that Karsai was nominated to head an interim government, but the actual new government hadn’t been elected yet.  The Taliban was largely defeated but still fighting.

    In any case, if anybody is covered by the Optional Protocol to the Convention on the Rights of the Child on children in armed conflict, he would be.  While prosecution isn’t specifically prohibited, prosecuting a minor solely for participating in the war is obviously completely contrary to the intent of the law, which is recognized by both US and Canada, although the US didn’t adopt the CRC itself.

  13. I think the point for the US is that Khadr is accused of killing a soldier whose widow is watching the proceedings.  Niceties of international law/domestic law belie the domestic political consequences of not trying him and not convicting him.  The political process nature of the military commissions comes out again.  Just imagine a crying widow on Fox News and you get the idea.

    As to the passive personality principle, the dead soldier and the widow being the victim and the surviving victim and both American, the US has an interest in seeking to prosecute Khadr (assuming the facts are true).  US treaty obligations would be put to the side on the theory of 1) they are not self-executing in guiding the US operation overseas (or last in time being MCA of 2009) and are not an impediment, 2) the only state that could assert the international law rule that might apply (Canada or Afghanistan under citizen equivalency test mentioned) have no interest in asserting it for Khadr, and 3) customary international law rules are overruled by US domestic law.  

    Afghanistan under a citizen equivalency stance could ask for Khadr to be repatriated and I imagine try him under Afghan criminal law (saw these kinds of things in GCIV). 

    The self-defense argument it would seem to me would be limited to the range of situations in which self-defense has been recognized. 

    I would be curious to see whether Afghan law or Canadian law includes this kind of self-defense, I doubt American law does that.

    As to self-defense in international law, my sense is that a civilian in this setting does not have that kind of self-defense unless they are in the levee en masse vision or there is something in customary international humanitarian law to which my attention has not been drawn.

    The extraterritorial application of a US domestic law crime to a foreign national is made easy by the foreign national’s country being unwilling to assert diplomatic protection for him and stand in the way of the political needs of the US Executive.  And the military commissions become the necessary expedient process to provide the US domestic law to get around everything else.

    And who is going to stand up for the due process of that security detainee?  And who stands up for that widow’s pain?

    It is possible for American citizens to try to insist and keep insisting in US domestic courts and in the political circles that the person has to be tried in a regularly constituted court or repatriated to his home country.  Other persons in other countries can also try to weigh in with their governments to put pressure on the US Executive.  At some point, the domestic political calculations (say post the mid-term or after the Presidentials) will be of less import in the calculus of the Executive and these other views may adjust the situation.

    The real hope of the Executive is that Khadr takes the plea deal that they keep sweetening so he “goes away”.  But Khadr appears to have been really radicalized by his treatment by all states involved and his family and has become what the French call a “tete brulee.” He is adamant.  Reminds me of the Zidane head butt in the World Cup.  Khadr is not playing along.

    My worry is we wake up some day and are told that Khadr committed suicide.  Given how Al-Libi was spirited to Libya where he was said to have committed “suicide”, I think anything is possible.  Khadr becomes the man who knew too much because in his body is what the US did to him.  Lots of people benefit from Khadr disappearing.

    That is one reason it is important to keep his name out there.  So the raison d’etat has to deal with the light of day.

    I really wish all this was in a court or court-martial where stronger traditions are at work.

    Judicial forms without judicial norms.  Robert Jackson is shaking his head in his grave.

    Best,
    Ben

  14. If Congress intended Military Commissions to try people for crimes under US domestic law against murder, for example, why wouldn’t they say so in the Military Commissions Act of 2009, rather than repeatedly referring to crimes “in violation of the law of war”.   The Military Commissions Manual seems contrary to the Act when it says that such crimes need not be in violation of inernational laws of war.  What US “law of war” did Khadr violate, if not the MCA itself?

    http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1383979

    The fact that Khadr occasionally tries to boycott the years long trial process doesn’t necessarily mean he’s dangerous.  It means he thinks the process is rigged.  So do a lot of other people.

    Khadr is a victim of Canadian politics too.  The former Liberal Prime Minister said he regretted their failure to seek repatriation when in office, based on subsequent information (court decisions, etc.).  The majority in Parliament have supported repatriation.  But, the minority Conservative government remains committed to keeping  Khadr out of the country for political or ideological reasons, in spite of court decisions ordering repatriation and/or declaring Khadr’s rights under the Constitution are being violated by the US with Canadian cooperation, and even in spite of hints that Obama might welcome a repatriation request. 

    Re Khadr’s status under Geneva, I suggested he might qualify for POW status under point 6 of Article 4.   He was an “inhabitant of Afghanistan”, he carried his arms openly and declared his intention to fight when confronted, according to the Prosecution.  I don’t know if he was in “occupied territory” though.  The Taliban was defeated in most places but still fighting.  Karsai was nominated to head an interim government.  I don’t know if the US declared itself to be occupying the country, as it did in Iraq.  

    It still isn’t clear to me under what law killing a soldier in a war with a grenade is a war crime triable by a military commission, whether Khadr had POW status under Geneva or not, and whether or not he was a member of Al Qaeda, because, as the Prosecution claimed, he’s of “Arab ethnicity” and was with a group that fought from a fixed position instead of melting away and returning.

  15. Great piece over at Jurist on the Al-Qosi military commission and how much nonsense the process really is.

    http://jurist.law.pitt.edu/forum/2010/08/a-trial-within-a-trial-justice-guantanamo-style.php

    Best,
    Ben

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