On Saturday, the New York Times reported that administration officials are "alarmed" by the military commission case of Omar Khadr, the Canadian citizen seized as a 15-year-old by U.S. forces in Afghanistan who's now spent a third of his life in the U.S. prison at Guantanamo Bay. Trying an alleged child soldier based largely on confessions he made after being threatened with gang-rape and murder is not the case the Obama administration had hoped to showcase in its first military commission trial.
But the argument in a new paper published today by Loyola Law School professor David Glazier should give the administration even more cause for alarm. Glazier, an expert on international law and the laws of armed conflict, argues that the military commission trial of Omar Khadr is itself a war crime.
That's because Khadr is charged with crimes that were only defined as war crimes by the Military Commissions Act, first enacted in 2006. Khadr is charged with conspiracy and material support for terrorism for helping his father's friends make and plant improvised explosive devices, and for "murder in violation of the laws of war" for throwing a grenade that killed a U.S. soldier during a firefight started by U.S. forces. All of these acts allegedly occurred in the summer of 2002. Back then, making bombs, planting anti-tank mines and killing the other side's soldiers who were trying to kill you first didn't violate any rules of war. Because Khadr was not a "privileged" belligerent entitled to the protections of international law, he could be prosecuted in a criminal court in the United States or Afghanistan. He is not, however, a war criminal.
Congress and the defense department have tried to get around this fact. In 2006 and again in 2009, Congress unilaterally re-wrote international law by defining conspiracy and material support for terrorism -- which encompasses pretty much anything an enemy force or its supporters might do -- as war crimes. In commentary to the rules, the Department of Defense further defined "murder in violation of the laws of war" to include murder of a U.S. soldier by an "unprivileged belligerent" such as Khadr. But simply stating it doesn't make it true.
Putting a suspect on trial for crimes that did not exist when the acts were committed is a violation of the U.S. Constitution's prohibition on ex post facto laws. It also violates several international treaties, including article 75 of the Additional Geneva Protocol I of 1977, which says that "no one shall be accused or convicted of a criminal offense on account of any act or omission which did not constitute a criminal offense under the national or international law to which he was subject at the time when it was committed..." The U.S. has acknowledged that this accurately states customary international law. Putting Omar Khadr on trial in a military commission for the acts of which he's accused, then, according to Professor Glazier, is itself a violation of the laws of war and a "grave breach" of the Third and Fourth Geneva Conventions. Such crimes can be prosecuted by other countries under the principle of universal jurisdiction. In the United States they're also federal felonies under the War Crimes Act of 1996.
Setting aside the likelihood of any other countries prosecuting the U.S. for war crimes in this situation, it's odd indeed that the Obama administration would choose to pursue this case -- indeed, would make this its first war crimes trial -- in the Guantanamo Bay military commissions.
There's another reason the U.S. might not want to call attention to the circumstances of this case. In August, the government presented as a witness a member of U.S. Special Forces who described entering the compound where Khadr was found and ultimately seized in July 2002. The witness, identified as Sergeant Major D, was armed with an N-4 Rifle and a Glock-9mm pistol. The compound had just been shot up by U.S. Apache helicopters and bombarded by two 500-pound bombs. After sensing a grenade and small arms fire coming from an alleyway, he testified, Major D ran to the alley and shot dead a man he saw with an AK-47 and a grenade. Omar Khadr, meanwhile, was seated on the ground in a dusty light-blue tunic, his back to Major D. Khadr was not armed, he wasn't holding or aiming any sort of weapon, nor was he threatening any U.S. servicemember in any way. Yet Sergeant Major D testified that he immediately shot him twice in the back. He then walked over and "thumped him in the eye" to see if he was still alive. He was.
Targeting a civilian not actively participating in hostilities is normally a war crime. Sergeant Major D testified that he shot Khadr because he viewed him as a "hostile" based on his being in the compound, which was permitted by the military's rules of engagement.
The laws of war should doom the military commission prosecution of Omar Khadr. And ultimately, for the U.S. government, that's not a bad thing. After all, if its interpretation of the laws of war were accurate, then the armed civilian CIA agent that accompanied Special Forces on their July 2002 raid could be equally guilty of murder in violation of the laws of war if he killed any of the al Qaeda members who died that day. So could CIA operatives operating remote-controlled drones targeting al Qaeda and Taliban leaders around the world.
Charlie Savage reported in the Times that the Obama administration doesn't want to put a stop to the case, such as by pushing a plea bargain, because it would be seen as "improper interference." But if the case is itself "improper" or even illegal, then the choice is to stop it now or see a conviction reversed later by a court on appeal. The latter choice might save the administration some immediate embarrassment before the midterm elections; but it will leave Omar Khadr cooped up even longer in a military prison on fictitious crimes. And it will leave a far more embarrassing legacy for the United States to contend with in the long run.