Government defends war crimes case; Court rules issued
UPDATE 7 p.m.
Military prosecutors have urged the new Court of Military Commission Review to reinstate in full the war crimes charges against a Canadian detainee, Omar Ahmed Khadr. The prosecutors’ written arguments to the Court, filed July 4, are now available, and can be found here. The case is U.S. v. Khadr, Docket 1 — the new appeals court’s first case. The document contended that the military judge’s dismissal of the charges, based on a finding that Khadr had not been properly determined to be an “unlawful enemy combatant,” threatens to undermine hundreds of combatant findings by military Combatant Status Review Tribunals. The findings made by those panels, the brief contended, are sufficient to establish that the detainees were, in fact, classified as unlawful, and thus trials against them may proceed before military commissions. The defense has 30 days to file a brief. Khadr and one other detainee, Salim Ahmed Hamdan, have been charged with war crimes. The charges against Hamdan also have been dismissed by a military judge.
The following post was filed earlier Tuesday:
The case of Guantanamo detainee Omar Ahmed Khadr will be the first before the new Court of Military Commission Review — the appeals court within the military that will review war crimes cases before tribunals called “military commissions.” Pentagon prosecutors appealed to the Court of Review on July 4 to challenge a military judge’s dismissal of all charges against Khadr, a 20-year-old Canadian.
John W. Rolph, deputy chief judge of the Court of Review, on June 28 promulgated the new rules that will govern that Court’s processes. The rules, put into effect as of June 27, can be found here.
The rules specify that the chief judge of the Court will establish one or more three-member decision panels, but en banc review is available at the full Court’s discretion upon motion by either side or by one of the panel members.
Only the United States — that is, the prosecution before a war crimes trial commission – may pursue pre-trial appeals. That is the situation with the Pentagon appeal in Khadr’s case.
Under the new rules, interlocutory appeals take priority over all other cases pending before the Court.
The Government’s brief in this Khadr appeal shares many assumptions with the argument made in the Fourth Circuit on al Marri. Both arguments assert that X does not meet the criteria established by Geneva III. As a result, the al Marri decision (and many government critics) argue that X must be a “civilian” protected by Geneva IV while in this Khadr brief the government argues that X must be an “unlawful enemy combatant”.
Although off subject, the problem with the first claim is that Geneva III protects captured members of the armed forces of a wartime enemy (no matter what their nationality), and then Geneva IV defines as “protected persons” all other nationals of an enemy nation not covered by another Geneva convention. The term “Civilian” appears in the title of GC IV since most people protected by this convention are civilians, but in the text the term that is repeated 99 times is “Protected Person”. GC IV defines who is a protected person and assumes that you know who is a civilian and that civilians are protected if they are citizens of an enemy country.
Similarly, GC III does not contain the word “combatant” (or its pre-1949 synonym “belligerent”). Examination of the plain text shows that it defines who is entitled to POW status. A document that does not define who is a combatant also cannot define who is an unlawful combatant. A number of government critics argue that since the Geneva Conventions do not define “unlawful enemy combatant” then no such designation can exist. The GC’s also do not define “war criminal” or “genocide”, but simply because there are other laws and treaties to do that.
It is universally understood that a civilian lacks the privilege to engage in combat. When he does, he is an unlawful belligerent. He is not protected by GC III. If he is a citizen of an enemy country, he is protected by GC IV. Since most members of al Qaeda are not Afghans, they are citizens of neutral or allied countries and are explicitly not covered by GC IV. Khadr (a Canadian citizen) is clearly not covered by GC IV. He is accused of being a civilian who engaged in combat and, by killing an American, committed murder.
A combatant is entitled to POW status, and anyone who is a POW was a combatant. So aren’t the two things the same? This gets clearer if you go back to the first Articles of the Annex to the Hague 1907 Agreement on the Laws of War. They explicitly define who is a “belligerent” and the language is nearly identical to some sections of Article 4 of Geneva III. So if you say that a person is a member of a fighting force that is not excluded from Geneva III by Articles 1-3, then Article 4 taken by itself defines which forces would be entitled to combatant status.
However, the most common reason for excluding al Qaeda from Geneva III is based on the claim that they are not related to any state or government. However, a real army of real combatants who would clearly pass the Article 4 tests do not lose their combatant status simply because they are nationals of the wrong country.
Consider a hypothetical based on “The Mouse that Roared”. The Duchy of Grand Fenwick (DGF) is recognized by the US State Department. Assume, for argument, that the DGF ratified the Hague 1907 agreements but forgot to ratify the 1949 Geneva Convention (and since the movie takes place in the ’50s, you cannot assume universal ratification). So under Geneva III Articles 1-3, Tully Bascomb’s force is not associated with a Geneva High Contracting Party and is therefore not entitled to POW status under Geneva III, but it is a “belligerent” force of a recognized government and is therefore entitled to POW status and the status of being lawful combatants both under common international law and explicitly under the Hague 1907 Agreements.
The DGF hypothetical undermines both claims. It shows that one can be part of a force that is not entitled to POW status under Geneva III and yet not be a civilian (which undermines the Fourth Circuit argument in al Marri), but it also shows that one can not be entitled to POW status under Geneva III and yet be a lawful combatant (which undermines the superficial arguments in the government’s Khadr appeals brief).
Admittedly, al Qaeda is not the DGF, but logic and common sense are not part of any of these arguments. No rational person would call a military force of 18,000 light infantry armed with assault weapons “civilians”, but the Fourth Circuit (and many Europeans) argue that such a designation is required because al Qaeda doesn’t represent a recognized state. Similarly, it is hard to imagine that the country responsible for Dresden, Tokyo, Hiroshima, and Nagasaki could say, as the brief does, that “It is beyond dispute that the terrorist organization responsible for the deaths of nearly 3000 Americans on September 11th is engaged in hostilities that are unlawful.” On March 10, 1945 US air forces dropped incindiary bombs burning to death 100,000 residents of Tokyo, but nobody decided that the US Army was, as a result, unlawful combatants.
This is not to say that the government can’t make an argument. The Gonzales memo on “Application of Treaties and Laws to al Qaeda and Taliban Detainees” starts with the Article 1-3 (non-state) claim, but goes on to address Article 4 questions directly. Unfortunately, those arguments are not part of the brief, and this old memo makes assumptions about Geneva Commmon Article 3 that the US Supreme Court rejected in Hamdan. So if they are going to make this argument, they need a brand new text updated to current interpretations.
There is “unlawful” and then there is “unlawful”. The “unlawful” needed to establish jurisdiction may be relatively simple to establish (using the argument in the brief that the MCA makes no sense otherwise). This will still leave the harder claim on the merits of the charge, that Khadr was not acting as a privileged combatant.
The govenment’s logic has been sloppy throughout. For example, Article 31 of the Hague 1907 Annex says “A spy who, after rejoining the army to which he belongs, is subsequently captured by the enemy, is treated as a prisoner of war, and incurs no responsibility for his previous acts of espionage.” This means that the last of the five charges against Kahdr (spying) cannot possibly be sustained. The government badly needs to tighten up its case or it will be in for a lot worse before the commission.
Comment by Howard Gilbert — July 11, 2007 @ 1:23 am
I want to add some precision to the various uses of the terms “lawful” and “unlawful”. Part 1 of the Hague Annex extended by additional language in Article 4 of Geneva III defines who is a “privileged belligerent” (pre-1949 term) and a “lawful combatant” (pos-1949 term). The opposite of “lawful combatant” is not “unlawful combatant” but rather “non-combatant” or “civilian”. There are then two distinct definitions of two completely different “unlawful combatant” classifications. You may mean “an unprivileged belligerent who engages in combat” as is claimed to be the case with Khadr, or you may mean “someone who engages in an act of unlawful belligerency” (a spy or saboteur, or someone who engages in combat under a false flag or flag of truce). Both require explicit acts. A lawful combatant (a uniformed soldier in a recognized army) can engage in unlawful belligerency (combat under a flag of truce) though that is usually referred to as a “war crime”.
Now look at this paragraph from the government’s appellate brief in the Khadr case:
After the first sentence, the paragraph correctly describes sources that define “lawful enemy combatant” and “lawful combatancy” as characteristics of an entire military unit. However, the first sentence originally claimed to address “the question of lawful versus unlawful combatancy”. Neither source says anything about who is “unlawful” or how to determine it. Accurately defining who is a lawful combatant does nothing to distinguish between non-combatant civilians and unlawful combatants. Being a member of an organization some of whose members engage in unprivileged combat does not cause other non-participant members to be unlawful combatants. So there is a problem when the brief says: “On 7 February 2002, the President determined that members of al Qaeda and the Taliban are unlawful combatants under the Geneva Conventions.” The President can certainly find that these groups are not “lawful combatants” as defined using the language of Article 4, but there is a difference between “not a lawful combatant” which the GC does define and “unlawful combatant” which the GC does not define and which cannot be assigned across the board based solely on group membership. In particular, it is hard to say how 18,000 people in Afghanistan each personally became unlawful combatants on 9/11 based on the action of 19 men half way around the world.
Having said this, it doesn’t meaningfully apply to the Khadr case at hand. He was captured after killing an American soldier in combat. The government claims he was not privileged, and that would make him an unlawful combatant. However, the distinction makes a big difference to all the other people awaiting military commissions who were not captured in combat.
Any Court Martial or Military Commission is going to understand these distinctions. The military really does not like to deny enemy soldiers the protection of POW status, because someone else will turn around and do it to our soldiers. To them, this is not just a matter of semantics. Soldiers lives are at stake.
Comment by Howard Gilbert — July 11, 2007 @ 3:31 pm
The not unreasonable analysis made in Al-Marri’s case was basically that civilians commit murder, which is a criminal offense, not a war crime. Hence, while his acts may have been unlawful, they don’t belong in the military justice system.
While it oversimplifies a little, the notion that a civilian can engage in combat while remaining a civilian is counterintuitive. What makes a civilian a civilian is that he does not engage in combat.
Howard Gilbert makes a thoughtful analysis of the relevant law, but I don’t share any confidence that this view is either settled, or is shared by either the judges of the military commissions in Guantanamo, or by the judges of the Article III Court of the United States. Moreover, I’m not at all convinced that any analysis used by either will end up being so nuanced.
Certainly, the decision of the Military Commission so far looks more like a creature of bureacratic formalism (albeit with a reasonable basis in the context of the MCA and DTA process), than it does like a careful categorial legal analysis. Likewise, there is no strong indicatation that any kind of meaningful legal analysis or extended factual analysis is going on in the combatant status review tribunals.
The bulk of the culling of true potential war criminals or combatants from people simply caught up mistakeningly in the process seems to be occurring more in the diplomatic circles and outside the formal process in the Pentagon and CIA’s intelligence arms — even the one Military Commission case to have been completed, the case of the Australian (a key U.S. military ally), stinks of ratification of a political deal rather than an evaluation or sentencing occuring on the merits.
Comment by Andrew Oh-Willeke — July 11, 2007 @ 5:42 pm
To protect civilians, the laws of war do not allow anyone acting as a civilian to suddenly and unexpectedly open fire. Normally soldiers wear a uniform, but this is a European convention that was not customary practice in Afghanistan. After 9/11 the highest priority shipment to our allies in the Northern Alliance was not guns or ammunition. The US dropped an emergency shipment of 15,000 uniforms so that our allies could be dressed according to Western legal standards. Nobody provided uniforms to enemy soldiers, who remained dressed according to local custom.
While uniforms may clinch the deal, the minimum required by Geneva III Article 4 is to carry arms openly and follow the laws of war. Certainly a country founded at Lexington, Concord, and Bunker Hill cannot insist on a dress code. In that context, it is interesting to read in this appeals brief the most detailed description of the fight in which Khadr was captured:
Thus prior to the combat for which he stands accused, Khadr dressed in a manner that clearly identified him as a combatant and there could be no doubt in the mind of US forces that he intended to fight. An Article III court would tend to follow written law, but a military court will see no deception here and is more likely to apply common law and find Khadr to therefore be a lawful combatant. While this would normally be a matter for the trial court, the appellate court may take note of this narrative and use it against the government on the “unlawful combatant” jurisdiction question.
Comment by Howard Gilbert — July 11, 2007 @ 10:47 pm