No Comment — May 25, 2010, 1:26 pm

The Khadr Boomerang

In the military commissions prosecution of the Canadian child warrior Omar Khadr, the United States charges murder and attempted murder in violation of the laws of war, in connection with an incident in which a grenade was hurled at American soldiers, leaving one dead and injuring several others. The theory underlying this charge is that Khadr was not a member of any lawful armed force, and his throwing a grenade was an unprivileged act of homicide or attempted homicide. It’s uncontroversial that throwing a grenade with the intention of killing others is a criminal act that can be charged as homicide or attempted homicide unless it’s a privileged act. However, there is a strong opinion among law-of-war scholars to the effect that it is not a violation of the laws of war, but rather a violation of the criminal law of the nation where the incident occurred. Thus, the Khadr prosecution rests on a faulty or eccentric legal position. Now the Vancouver Sun has disclosed that senior lawyers inside the Obama Administration fully recognized that the prosecution of Khadr rested on a false legal premise and attempted to stop and change the prosecution, apparently without success.

Officials in the Obama administration demanded a game-changing rule change for the Guantanamo Bay military tribunal that would have likely scuttled the war crimes murder charge against Canadian-born terror suspect Omar Khadr,
Canwest News Service has learned. The officials sought to strip a new commissions manual of a law-of-war murder definition that is central to Khadr’s prosecution in the mortal wounding of Special Forces Sgt. First Class Chris Speer during a 2002 firefight in Afghanistan, insiders say. Omission of the segment could have also obliged prosecutors to trim or abandon “up to one-third” of its cases, according to one inside estimate. Prosecutors said in the wake of the Bush administration they were prepared to take about 60 Guantanamo detainees to trial – among them the accused co-conspirators of the Sept. 11, 2001 attacks.

The Sun notes that the dispute erupted between lawyers at the State and Defense Departments, with the nation’s senior international law officer, Legal Adviser Harold Koh, arguing that the provision should be dropped, while the senior Defense Department lawyer, Jeh Johnson, supported the provision.

I recently discussed Koh’s attempt to justify the use of drones for targeted killings. I noted that Koh had failed to address an obvious legal issue—that the drones were being operated by civilian contractors, not uniformed military personnel who are privileged to used lethal force under the law of war. The drone warfare raises the same issue that the Khadr prosecution does: if the operators of these systems are not privileged to use lethal force, are they committing a crime under the law of war when they do so? The language adopted in the manual for military commissions argues that they are, but the position taken by the State Department to justify the use of drones assumes the opposite. These positions are difficult to reconcile.

Does this mean that the prosecution of Omar Khadr for homicide as a violation of the law of war could boomerang on the United States? It’s clear than some of the Obama Administration’s best legal minds are concerned about precisely that. And it’s clear that the posture taken in the prosecution of Khadr presents a troubling precedent for civilian contractors, not just those who operate the drones. It is not likely, of course, that the United States will ever charge any of its contractors with “homicide under the law of war” for the use of lethal force in a conflict setting, but the prosecution of Khadr opens the door for others to do so.

The Sun report only serves to highlight the shortcomings of the process of setting the military commission rules. The Gates Pentagon prepared the manual for the military commissions completely behind closed doors. It disregarded established procedures under which proposed procedural rules are disclosed for public comment and the views of the military bar itself are explicitly solicited. We now see that it turned to secrecy because it had something to hide: the rules were recognized as flawed and weak even within the Obama Administration, where they were subjected to appropriately sharp criticism. Had they been publicly aired, the Pentagon would have been forced to work out the contradictions in them. But it opted to keep the country and the bar in the dark.

The Obama Administration owes the country a clear explanation of its legal policy positions with respect to law-of-war issues. What it has served up instead is a series of half-baked and unresolved controversies that undermine confidence in the military justice system. Common Article 3 of the Geneva Conventions, which the Supreme Court has held to be binding on the military commissions, says they must be a “regularly constituted court.” But at every turn, the Pentagon has taken shortcuts that compromise the credibility of these tribunals.

Share
Single Page

More from Scott Horton:

Conversation August 5, 2016, 12:08 pm

Lincoln’s Party

Sidney Blumenthal on the origins of the Republican Party, the fallout from Clinton’s emails, and his new biography of Abraham Lincoln

Conversation March 30, 2016, 3:44 pm

Burn Pits

Joseph Hickman discusses his new book, The Burn Pits, which tells the story of thousands of U.S. soldiers who, after returning from Iraq and Afghanistan, have developed rare cancers and respiratory diseases.

Context, No Comment August 28, 2015, 12:16 pm

Beltway Secrecy

In five easy lessons

Get access to 167 years of
Harper’s for only $45.99

United States Canada

CATEGORIES

THE CURRENT ISSUE

November 2017

Preaching to The Choir

= Subscribers only.
Sign in here.
Subscribe here.

Monumental Error

= Subscribers only.
Sign in here.
Subscribe here.

Star Search

= Subscribers only.
Sign in here.
Subscribe here.

Pushing the Limit

= Subscribers only.
Sign in here.
Subscribe here.

Bumpy Ride

Bad Dog

= Subscribers only.
Sign in here.
Subscribe here.

view Table Content

FEATURED ON HARPERS.ORG

Article
Monumental Error·

= Subscribers only.
Sign in here.
Subscribe here.

In 1899, the art critic Layton Crippen complained in the New York Times that private donors and committees had been permitted to run amok, erecting all across the city a large number of “painfully ugly monuments.” The very worst statues had been dumped in Central Park. “The sculptures go as far toward spoiling the Park as it is possible to spoil it,” he wrote. Even worse, he lamented, no organization had “power of removal” to correct the damage that was being done.

Illustration by Steve Brodner
Article
Star Search·

= Subscribers only.
Sign in here.
Subscribe here.

On December 3, 2016, less than a month after Donald Trump was elected president, Amanda Litman sat alone on the porch of a bungalow in Costa Rica, thinking about the future of the Democratic Party. As Hillary Clinton’s director of email marketing, Litman raised $180 million and recruited 500,000 volunteers over the course of the campaign. She had arrived at the Javits Center on Election Night, arms full of cheap beer for the campaign staff, minutes before the pundits on TV announced that Clinton had lost Wisconsin. Later that night, on her cab ride home to Brooklyn, Litman asked the driver to pull over so she could throw up.

Illustration by Taylor Callery
Article
Pushing the Limit·

= Subscribers only.
Sign in here.
Subscribe here.

In the early Eighties, Andy King, the coach of the Seawolves, a swim club in Danville, California, instructed Debra Denithorne, aged twelve, to do doubles — to practice in the morning and the afternoon. King told Denithorne’s parents that he saw in her the potential to receive a college scholarship, and even to compete in the Olympics. Tall swimmers have an advantage in the water, and by the time Denithorne turned thirteen, she was five foot eight. She dropped soccer and a religious group to spend more time at the pool.

Illustration by Shonagh Rae
Article
Bumpy Ride·

= Subscribers only.
Sign in here.
Subscribe here.

One sunny winter afternoon in western Michigan, I took a ride with Leon Slater, a slight sixty-four-year-old man with a neatly trimmed white beard and intense eyes behind his spectacles. He wore a faded blue baseball cap, so formed to his head that it seemed he slept with it on. Brickyard Road, the street in front of Slater’s home, was a mess of soupy dirt and water-filled craters. The muffler of his mud-splattered maroon pickup was loose, and exhaust fumes choked the cab. He gripped the wheel with hands leathery not from age but from decades moving earth with big machines for a living. What followed was a tooth-jarring tour of Muskegon County’s rural roads, which looked as though they’d been carpet-bombed.

Photograph by David Emitt Adams
Article
Bad Dog·

= Subscribers only.
Sign in here.
Subscribe here.

Abby was a breech birth but in the thirty-one years since then most everything has been pretty smooth. Sweet kid, not a lot of trouble. None of them were. Jack and Stevie set a good example, and she followed. Top grades, all the way through. Got on well with others but took her share of meanness here and there, so she stayed thoughtful and kind. There were a few curfew or partying things and some boys before she was ready, and there was one time on a school trip to Chicago that she and some other kids got caught smoking crack cocaine, but that was so weird it almost proved the rule. No big hiccups, master’s in ecology, good state job that lets her do half time but keep benefits while Rose is little.

Illustration by Katherine Streeter

Tons of invasive carp that the Australian government plans to eradicate by giving them herpes:

1,137,000

Contact lenses change the microbiome of the eye such that it resembles skin.

A reporter asked Trump about a lunch the president was said to have shared the previous day with his secretary of state, Trump said the reporter was “behind the times” and that the lunch had occurred the previous week, and the White House confirmed that the lunch had in fact occurred the previous day.

Subscribe to the Weekly Review newsletter. Don’t worry, we won’t sell your email address!

HARPER’S FINEST

Report — From the June 2013 issue

How to Make Your Own AR-15

= Subscribers only.
Sign in here.
Subscribe here.

By

"Gun owners have long been the hypochondriacs of American politics. Over the past twenty years, the gun-rights movement has won just about every battle it has fought; states have passed at least a hundred laws loosening gun restrictions since President Obama took office. Yet the National Rifle Association has continued to insist that government confiscation of privately owned firearms is nigh. The NRA’s alarmism helped maintain an active membership, but the strategy was risky: sooner or later, gun guys might have realized that they’d been had. Then came the shootings at a movie theater in Aurora, Colorado, and at Sandy Hook Elementary School in Newtown, Connecticut, followed swiftly by the nightmare the NRA had been promising for decades: a dedicated push at every level of government for new gun laws. The gun-rights movement was now that most insufferable of species: a hypochondriac taken suddenly, seriously ill."

Subscribe Today