Tuesday, June 05, 2007


Unlawful Combatants

The Associated Press yesterday reported that Army military judge threw out the military commission case against Omar Khadr, a Canadian member of a known terrorist family intricately enmeshed with Al Qaeda:

The judge, Army Col. Peter Brownback, said he had no choice but to throw out the Khadr case because he had been classified as an "enemy combatant" by a military panel years earlier — and not as an "alien unlawful enemy combatant."

The Military Commissions Act, signed by President Bush last year, says only those classified as "unlawful" enemy combatants can face war trials here, Brownback noted during the arraignment in a hilltop courtroom.

COL Brownback recognized Khadr as “merely” an enemy combatant. Thus COL Brownback simplistically ruled that Khadr was not properly designated an “alien unlawful enemy combatant,” and thus the judge dismissed the case “without prejudice,” asserting the military commission did not have jurisdiction over Khadr.

In effect, the court constructively defined the youthful defendant as “merely” a prisoner of war.

I am not a legal expert, nor per force more specifically a military law expert. But I can sometimes retain the patience to read through the tendentious (and often bombastic) legalese in legal arguments.

It seems to me that, as in previous wars, the US military and its civilian leadership can consider various options for what to do with the poor misguided soul for whom these charges were dismissed:

They can attempt to “officially” designate him as an illegal enemy combatant, and charge him with any war crimes he may be guilty of, such as fighting as an enemy combatant without a uniform or identifying himself as a soldier, or killing or conspiring to kill civilian non-combatants.

They can try him criminally for murder, or conspiracy to commit acts of violence, or other criminal charges.

They can engage in negotiations for his release, say under a “prisoner swap” with our enemies.

They can hold him until the cessation of hostilities, at which time he can be returned to his country of origin.

They can deport him to his country of origin or extradite him to any other third country in which the defendant faces criminal or terror charges.

They can release him.

I suppose some more interested in an ideal jurisprudence will consider Khadr’s age an important factor in any legal proceedings against him. Khadr was 15 at the time of his capture, and is 20 now. While in custody, Khadr’s Father was killed in fighting in Afghanistan, and his siblings (including one younger than Khadr!) have been sought or captured in counter-terrorist fighting and other military operations.

Yet you’d never guess that from how his Defense Lawyers portray the youthful Jihadi:

A prosecutor, Army Capt. Keith Petty, said he had been prepared to show Khadr was an unlawful combatant because he fought for al-Qaida, and videotapes showed Khadr making and planting explosives targeting American soldiers.


The son of an alleged al-Qaida financier, Khadr is accused of killing U.S. Army Sgt. Christopher Speer with a grenade during a firefight in Afghanistan on July 27, 2002.

Khadr's attorneys said he was a child soldier and should be rehabilitated, not imprisoned.

"The U.S. will be the first country in modern history to try an individual who was a child at the time of the alleged war crimes," the attorneys said in a joint statement in April.

As I admitted, I am not an expert in Military Law, nor am I as well versed as some in the seminal laws, regulations, and other documents that form the basis for military tribunals or military commissions. But I do know something about the enemies we face in radical Islamic terror organizations, and I know they consciously and carefully plan intricate legal strategies to confound counter-terror operations, and turn our own legal system into knots, and against our National Interest.

Andrew McCarthy, writing at National Review Online, sharply rebukes COL Brownback and most of Brownback’s legal reasoning as silly. Again – not a lawyer – but this strikes me as pretty pointed criticism of a jurist.

First, McCarthy provides a very helpful primer on Khadr and his Al Qaeda bona fides:

In July 2002, Khadr was on the battlefield in Afghanistan, aligned with al Qaeda. During a ferocious firefight against U.S. forces, Khadr allegedly threw a grenade at his enemies, killing a medic, U.S. army Sergeant Christopher Speer, and wounding three other Americans, including Sergeant Layne Morris, who lost an eye.
At the time, Khadr was 15 years old. Young? Sure, but it was no surprise to find him waging war against Americans. His father, Egyptian-born Ahmed Said Khadr, was an intimate of Osama bin Laden. The elder Khadr was reputed to be al Qaeda’s highest ranking operative in Canada. His sons were trained in al Qaeda camps. His daughter married an al Qaeda operative in a ceremony attended by bin Laden himself.
In 1995, Ahmed Khadr was arrested by Pakistani authorities in connection al Qaeda’s bombing of the Egyptian embassy in Islamabad. By intercession of the Canadian government, he was released. In October 2003, over a year after his son Omar is said to have murdered Sgt. Speer, Ahmed Khadr was finally killed in Pakistan. During the same counter-Qaeda operation, Pakistani authorities also encountered Omar’s younger brother, then-14-year-old Abdul, who was paralyzed. Meanwhile, of Omar’s two older brothers, one, Abdullah, is a fugitive, and the other, Abdurrahman, was captured fighting Coalition forces in Afghanistan in November 2001.

And here’s how McCarthy characterizes those who celebrate COL Brownback’s decision (just for a healthy dab of high sarcasm):

Naturally, the ruling has provoked squeals of joy from Bush-bashers who’ve devoutly sought a return to the good old pre-9/11 days when terrorist operatives were treated like common tax cheats — committed to the civilian justice system and bathed in the bountiful privileges the U.S. Constitution fashioned for American citizens. The dismissal, moreover, is quietly applauded by many military justice officials who’ve made little secret of their resentment over being frozen out of the administration’s decision to employ commissions — something wartime commanders-in-chief have done since General George Washington convened such tribunals during the Revolutionary War.

Opponents of this Administration and our efforts to confront the sworn Jihadi enemies of any age who fight us in this war [not to be called the Global War on Terror] seem bound a determined to re-label the entire problem as one of law enforcement and legal wrangling.

Admittedly, most citizens of these United States are far more fearful of lawyers than they are of armed forces, but I think terrorists view this Army of Lawyers more as useful irregulars in their fight against civilization.

McCarthy’s explanation of the current legal basis for determining who is an unlawful enemy combatant seems definitive, so I quote in its entirety:

, the crucial inquiry with a combatant is whether he is properly categorized as unlawful, as the MCA requires. So how does the military make that determination? It conducts what is known as a Combatant Status Review Tribunal (CSRT). And it is in connection with the CSRTs that Col. Brownback has gone astray, needlessly inflating into a mountain the molehill created by some — at most — semantic differences between what the MCA calls for and what the military’s CSRT procedures provide.
The military’s [Combat Status Review Tribunal] CSRT procedures are set forth in a memorandum issued by the Deputy Secretary of Defense, which is available on the Defense Department’s website. (See here, last updated May 21, 2007.) The memo was issued on July 14, 2006. Note that that is five months before the MCA. It would be a fair criticism to argue that once the MCA was enacted, the Pentagon’s legal staff should have gone carefully over the memo to ensure symmetry between the MCA’s requirements for military commission jurisdiction and the CSRT findings that would be used to satisfy those requirements. Still, to give the Defense Department its due, it would have been reasonable — notwithstanding Monday’s ruling — to conclude that the CSRT procedures were adequate to the task.
The basic problem is some loose language. The CSRT procedures, in shorthand fashion, speak of determining whether a detainee is an enemy combatant, not an unlawful enemy combatant as the MCA requires. Under the memo’s “Purpose and Functions” section (p. 1 of the memo’s first enclosure), it is explained that the CSRT will “determine whether each detainee … meets the criteria to be designated as an enemy combatant.” Does that mean the Pentagon somehow forgot about unlawful? No, not at all. On close examination, we learn the difference in terminology used by the MCA and the CSRT procedures is superficial, not substantive.
That’s because the memo does not merely state that CSRTs should establish that the detainee is an “enemy combatant.” It also takes pains to define what is meant by that term (again, at p. 1 of the memo’s first enclosure):

An “enemy combatant” for purposes of this order shall mean an individual who was part of or supporting Taliban or al Qaida forces, or associated forces that are engaged in hostilities against the United States or its coalition partners. This includes any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces. [Emphasis added.]

In other words, even though the CSRT procedures do not mandate a separate finding that an enemy combatant has acted “unlawfully,” they necessarily call for a conclusion that he has done so. By definition, a detainee can only be found to be an enemy combatant if he has been part of, or provided support for, al Qaeda, the Taliban, or their affiliates. Those forces conduct their operations in blatant violation of the laws of war, which require combatants to be part of a regular armed force, wear uniforms, carry their weapons openly, and refrain from targeting civilians and civilian infrastructure. Thus, if you are part of or supporting al Qaeda and its allies, you are necessarily conducting your operations unlawfully in the sense of violating the laws of war.


The CSRT found that Khadr was an “enemy combatant” by employing procedures under which such a finding cannot happen unless the person is found to be an unlawful enemy combatant. But because the CSRT procedures don’t require the tribunal to say the magic word “unlawful” — just to find the real-world fact of unlawfulness — Colonel Brownback has found the CSRT wanting.
Not to get too technical, but the clinical word for that is “silly.”

I find McCarthy’s conclusion quite persuasive, but then I think we’re at war with real enemies, vicious and ruthless ones, who will use every weapons they can – their own and our own – against us. This is no bumper sticker invention, no product of spin. This war exists, and did long before 9/11 or even the much-maligned Presidency of George W. Bush.

Rather than create legal Melodrama over imagined US human rights violations, these same critics need to stand face to face with our enemies, the real ones, not the bogey-man of their partisan imaginings.

It is long past time for serious policy opponents to formulate and argue intelligently for realistic alternatives, if they have any. It is long past time for critics of US policies to design realistic models of jurisprudence towards war criminals, illegal enemy combatants, terrorists and those state and non-state actors, who daily defy Conventions, civil compacts, laws of war, and basic covenants of humanity.


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