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.

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