Continuity we have to believe in (part III) – Trials.

Jason Ralph

It’s pretty much obvious from my two weeks spent talking and listening to people in DC that the continuities between the Obama and Bush administration outweigh the changes.  This is the third post on some general and incomplete notes explaining why I took this impression back to the UK.  The first post dealt with what I learned about US policy toward the ICC, the second post was on US detention policy under Obama.  This post will deal with the questions confronting the prosecution of Guantanamo detainees, in particular the question of what the detainees are being charged with and whether those are crimes that should be tried in federal courts or military commissions. 

The two aspects of this question are of course linked, what detainees are charged with influences decisions on where they are to be tried.  The concern is that – for whatever reason – there is a preference for military commissions over civilian courts and this is leading to inappropriate charges and a distortion of existing laws and norms of war.  So for example, the legal opposition to the prosecution of certain detainees centres on jurisdictional issues as well as a contestation of the facts.  Even if defence lawyers accept the government’s account of the facts (and they do not always do this) they have argued in the past that military commissions should not be exercising jurisdiction over their cases.  This is particularly so with the crime of ‘murder in violation of the laws of war’, which Omar Khadr and Muhammed Jawad have been accused of.  Click here and here for the respective charge sheets, details of their alleged crimes, and for the motions to dismiss on jurisdictional grounds, part of which is quoted below.  The issue in these cases is whether an unlawful combatant that kills or attempts to kill a US soldier is guilty of a war crime triable by military commission; or whether – as the defence has argued – those acts are ordinary crimes that should be prosecuted in the civilian courts of those states with an interest in the case (i.e. Afghanistan on whose territory the alleged crime occurred or the US whose soldiers were killed or injured). 

There is then quite a complex legal dispute behind the question of whether some ‘terrorists’, and specifically the detainees in Guantanamo, should be prosecuted in military commissions or federal courts.  I want to try to deal with this dispute and its significance for my broader research question before discussing the politics of that question and how it has seemingly divided the Obama administration.   It is worth saying at this point, however, that this legal dispute is set to be topical in the coming weeks because the Obama administration has chosen Omar Khadr to be the first trial to go before the revamped military commission system.  While Obama’s January 09 decision to suspend trials by military commissions suggested the possibility of a complete break with previous policy, the October 09 Military Commissions Act indicated continuity.  See my RA’s earlier posts on this blog.  If Khadr’s impending trial includes one of the most controversial aspects of the military commission system, – ‘murder in violation of the laws of war’ – then it is a further indication that ‘the law of 9/11’ continues to operate. 

The Bush administration’s decision to label al Qaeda and Taliban as ‘unlawful combatants’ did, of course, have consequences for the treatment of detainees while they were being held in detention.  We were told by the Bush administration that the Geneva Conventions, which would have protected the detainees from harsh interrogations, did not apply to the war on terror because those detainees were neither civilians wrongfully detained nor lawful combatants entitled to POW status.  They instead fell into a third category of ‘unlawful enemy combatants’ and they were not protected by international humanitarian law.  In addition, these detainees lacked the immunity that protects privileged combatants from being prosecuted when they kill soldiers on the other side.  Thus, unlawful combatants can, according to the Bush and Obama administration, be charged with the crime of ‘murder in violation of the laws of war’, which involves engaging in hostilities against US armed forces.  It stems from Military Commission Instruction No.2 of 2003, which defined the crime of ‘murder by an unpriviliged belligerant’ as follows:

Unlike the crimes of wilful killing or attacking civilians, in which the victim’s status is a prerequisite to criminality, for this offence the victim’s status is immaterial.  Even an attack on a soldier would be a crime if the attacker did not enjoy ‘belligerent privilege’ or ‘combatant immunity’.  

Following the Hamdan Supreme Court judgment – which insisted that Congress needed to legislate and that the laws of war did apply to the war on terror, specifically common article 3 on non-international armed conflict – the 2006 MCA redefined this offence as ‘murder in violation of the laws of war’.  This stated that any unlawful combatant

who intentionally kills one or more persons, including lawful combatants, in violation of the law of war shall be punished by death or such other punishment as a military commission under this chapter may direct.

Now, the question that defence lawyers in the Khadr and Jawad cases have tried to exploit is whether murder or attempted murder in the setting of a non-international armed conflict is a war crime (i.e. a violation of the law of war) that can be tried in a military commission.  In motions to dismiss the charge on grounds that the military commission lacked subject matter jurisdiction, they argued that even if their clients are guilty of murder or, in Jawad’s case, attempted murder, they could not be guilty of a war crime triable in a military commission.  International law – which the Supreme Court insisted applied to the war on terror and Congress accepted by adding the phrase ‘in violation of the laws of war’ to the 2006MCA definition of murder – defines a war crime as an attack on a civilian or individual hors de combat by a privileged combatant.  Nowhere in the modern laws of war does an attack on a privileged combatant by an unprivileged combatant constitute a war crime.  The defence argument accepts that such an attack is a crime, but they argue it is an ordinary crime triable in regular domestic courts, in this case the civilian courts of either Afghanistan or the United States.  This then is how the legal technicalities of the crimes Khadr and Jawad were charged with feed into the current political question of where to prosecute Guantanamo detainees. 

The defence’s arguments, which were made in 2008, did force a kind of concession from the government, which was that the mere status of being an unlawful combatant is not enough to be found guilty of a war crime.  In their response to the motion to dismiss, for instance, government lawyers argued that when Khadr and Jawad threw the grenades that killed (in Khadr’s case) and injured (in Jawad’s case) US soldiers, they were guilty of ‘perfidy’ or ‘treacherous killing’, and there is no doubt that these crimes are recognised as war crimes in the modern laws of war (see for instance Article 8 Section 2b(xi) of the Rome Statute).  This is significant, because it suggests that an al Qaeda or Taliban member that engages US forces in hostilities is not necessarily guilty of a war crime simply because he is a civilian engaging in combat (i.e. an unlawful combatant).  There has to be some other element to his action that demonstrates he is guilty of perfidy or treacherous killing and hence a war crime triable by military commission.  Seizing on this admission by the government, Khadr’s lawyers argued that he had not been charged with perfidy because the facts of his case did not match the elements of that crime.

Nothing in this specification alleges the elements of perfidy. It is not alleged that he feigned protected status, hors du combat, or even that he skulked up to unsuspecting U.S. soldiers, exploiting his civilian appearance to ambush them. He was a clear and lawful target of attack, as evidenced by our own soldiers initiating combat air support and ultimately shooting him twice in the back. On its face, the allegation is that he participated in conventional combat. But this does not allege a murder done in violation of the law of war.

The implication is that Khadr is not guilty of perfidy and he cannot therefore be charged with a war crime or prosecuted in a military commission.  Throwing the grenade at the US soldier was an ordinary crime of murder that was in violation of Afghan and American domestic laws.  He should therefore be tried in a federal court not a military commission.

Jawad’s lawyers also recognised perfidy as a war crime.  Article 504g of the Army Field Manual, they note, lists ‘use of civilian clothing by troops to conceal their military character during battle’ as a war crime.  Yet they further argued that ‘this example makes clear that it is not merely the lack of uniform that converts an ordinary crime into a war crime, rather it is disguising oneself as a civilian, or feigning being a civilian by otherwise lawful combatants – military troops – that is a law of war violation, namely perfidy.  Appearing out of uniform because you are a civilian and possess no uniform, or for purposes other than concealing one’s military character, is not a violation of the law of war.’  Understanding this allows one to dismiss as irrelevant the World War II Ex Parte Quirin case, which the government has relied on to justify the policy of prosecuting unlawful combatants.  Jawad’s defence team argued that in Quirin the accused were enemy combatants (they were German soldiers) that feigned civilian status by abandoning their uniforms in order to attack civilian targets in the US.  In contrast, Jawad was not behind enemy lines, he was where he was entitled to be, in Afghanistan.  He did not attack a civilian target, he threw a grenade at US military forces.  And he had not feigned civilian status by abandoning his uniform because he did not have a uniform to discard.  On this basis, Jawad should not be charged with perfidy, and because he has not committed any other war crime then he should not be prosecuted in a military commission.  If the facts of the case are right and Jawad did throw the grenade that injured US soldiers then he should be charged with the ordinary crime of attempted murder and prosecuted in an Afghan domestic court exercising territorial jurisdiction or a US federal court exercising jurisdiction according to the passive personality principle (i.e. the victim was a US citizen).  A similar argument was made, without specific reference to Jawad or Khadr, by Marco Sassoli in the ASIL conference panel of change and continuity in the war on terror.

Despite these arguments, the military judges on the commissions rejected the motions to dismiss citing a kind of sovereigntist argument that Congress has the right under Article I of the US Constitution to ‘define and punish’ offences against the law of nations.  This suited the Bush administration and those in Congress who opposed the use of federal courts to prosecute the Guantanamo detainees on national security grounds, but to the extent that these detainees are being charged with a crime that stems from what appears to be a peculiarly American interpretation of the laws of war then it does smack of exceptionalism.    As Geoffrey Corn and Eric Jensen put it, military commission crimes such as ‘murder in violation of the laws of war’ and ‘material support for terrorism’ (see Dominika Svarc’s earlier post on this) seem to be ‘motivated by the desire to avoid bringing such cases to trial in civilian courts.  While this may be both logical and even legitimate from a national security perspective, it does not comport with the subject-matter limitations historically associated with military war crimes tribunals.’ (The War on Terror and the Laws of War, Oxford University Press, 2009, p.179).  For the argument that this is vulnerable to challenge in the Supreme Court because it exceeds Congress’ authority under Article I of the US Constitution see Assistant Attorney General David Kris and Deborah Pearlstein’s testimony before the Senate Judiciary Committee July 28, 2009.

 It is significant then that almost a decade after 9/11 the Obama administration (a) still considers it necessary to use military commissions, (b) that ‘murder in violations of the laws of war’ reappears in the 2009 Military Commissions Act and, (c) despite the release of Jawad in August 09, Khadr is set to be the first detainee to be prosecuted before the new commissions.  Obama has said he wants to use all the tools at his disposable in the fight against terrorism.  The price of using military commissions in this way is potentially a new definition of war crime, one that is, to my knowledge, only accepted in the American military commission system.  The state of the American exception under Obama then appears to be rather healthy.  The implication of this for my project is quite telling.  If Khadr is charged with and found guilty of a war crime simply because he engaged the enemy as an unlawful combatant, it suggests that the principle of ‘battlefield equality’, (i.e. the principle that combatants on both sides can target each other’s military without fear of prosecution) is still being challenged despite the change of administration.  Of course, Khadr’s defence has not argued for the immunity from prosecution that comes with combatant / POW status.  But to the extent the US government is still arguing that Khadr is a combatant ‘guilty’ of killing US soldiers then this suggests a view of war where only one side is entitled to fight.  This is consistent with Carl Schmitt’s critique of liberal war, which is the starting point for my project.  If however, the defence wins and either gets Khadr transferred to a federal court to face the charge of ordinary murder, or gets the military commission to consider the case as one of perfidy (i.e. a war crime that is accepted by the international community) then one can conclude that US practice is more in line with the norm and the American exception is not so obvious.

To be fair to the Obama administration, it has clearly attempted to reverse the law of 9/11 in other cases involving the prosecution of Guantanamo detainees.  About 35 detainees have been identified by the task force for prosecution.  There are other more high profile cases to go before military commissions, for instance Abdal-Rahim Hussein Muhammed Abdu Al-Nashiri.  He is accused of murder in violation of the laws of war, despite the fact that the alleged crime in question took place in and around Aden, Yemen before 9/11 and therefore before the relevant armed conflict (i.e AfPak).  He is alleged to have killed 17 US sailors ‘by causing two men dressed in civilian clothing and operating a civilian vessel laden with explosives and detonating said boat-bomb alongside the … USS COLE’.  But the Obama administration also tried to transfer some high profile cases to a federal court, including the alleged 9/11 plotter Khalid Sheikh Mohammed (KSM).  He was set to face trial before military commission for ‘war crimes’ such as murder and destruction of property in violation of the law of war and attacking civilians and civilian objects, as well as conspiracy, intentionally causing serious bodily injury, hijacking or hazarding an aircraft, terrorism and providing material support for terrorism.  These charges beg the question of why KSM was transferred to a federal court when his crimes are seemingly a better fit to the normal war crimes definition (i.e. they involve attacks on civilians and civilian object) than Khadr’s or Nashiri’s.  The deciding factor here is seemingly a mixture of principle and pragmatism, which is something Brad Weigman of the DoJ National Security Division confirmed when he spoke at the recent ASIL conference.  This also comes across in the “Determination of Guantanamo Cases Referred for Prosecution” protocol released by the DoJ in July 09.  So, in reaching its decision on trial venue the government apparently considered

the nature of the offenses to be charged or any pending charges; the nature and gravity of the conduct underlying the offenses; the identity of victims of the offense; the location in which the offenses occurred; the location and context in which the individual was apprehended; and the manner in which the case was investigated and evidence gathered, including the investigating entities.    

As well as the

protection of intelligence sources and methods; the venue in which the case would be tried; issues related to multiple-defendant trials; foreign policy concerns; legal or evidentiary problems that might attend prosecution in the other jurisdiction: and efficiency and resource concerns

For human rights and civil liberties groups both of sets of reasons do not justify trial by military commission.  As noted above, they fear what Dominika Svarc, my RA, termed ‘the militarization of civilian crimes’ such as the murder of a US soldier by a non-combatant and providing material support for terrorism; and of course this feeds in to a concern that the only reason for military commissions  is to enable the government to secure the conviction that would otherwise be unlikely if federal courts had been the only option available.  The danger is again identified by Pearlstein in Congressional testimony

The single biggest threat to the legitimacy of the military commissions going forward is the danger that the commissions will function, in perception or reality, as a second-class form of justice for cases involving evidence insufficient to prevail in prosecution in a traditional Article III setting.

This may be both logical and even legitimate from a national security perspective – to repeat Corn and Jensen’s formulation – but it does not comport with the rhetoric of the President’s campaign speeches and inaugural address, which of course ‘rejected as false’ the trade-off between liberty and security.  

Again to be fair to the Obama administration it is apparently committed to only using military commissions to deal with the GTMO cases it inherited from the Bush administration.  There is a presumption, which is reflected both in Presidential speeches, Congressional testimony and the Protocol governing the determination of GTMO cases, that federal courts are the most appropriate forum for prosecuting terrorists.  Moreover, anyone visiting the DoJ website cannot fail to notice what amounts to a public information campaign on the relative success of the normal criminal justice system in securing the convictions of terrorists – the current score card since 2001 is apparently federal courts 319 v 3 military commission , as well as the defence of decisions to deal with new terrorists (such as Abdulmuttalab, Zazi, LaRose and Headley) through the criminal justice system.  For others who cite the effectiveness of federal courts click here and here.  It may well be then that liberals can – as I have argued in a previous post – give the administration the benefit of the doubt so long as post GTMO cases are dealt with either in federal courts or military commission that do not operate with an exceptional definition of war crimes nor militarize regular civilian crimes.  In other words, election year politics may force it to backtrack on the KSM decision but this could be forgiven by liberals if they accept this as an exceptional response to 9/11 and that new cases are not treated according to the law of that period.  Adopting two different tracks – one to deal with the exceptional post 9/11 period and the other to deal with new cases of terrorism, murders of US soldiers by civilians on the battlefield and war crimes – was also made by Deborah Pearlstein in recent testimony before the Senate Judiciary Committee.  

There is an intriguing question underpinning this which for me has not been properly answered: why does Eric Holder’s Department of Justice find it so difficult to convince Congress to trust the criminal justice system to deliver the outcomes that are consistent with national security?  To answer that question we need to go beyond legal analysis and even look beyond the day-to-day politics of Washington.  It requires understanding the roots of a conservative view that is, I suggest, deeply entrenched in American attitudes to law, particularly international law, and national security. On this, Stephen Holmes offers a helpful hypothesis in his contribution to Karen Greenberg’s edited volume The Torture Debate in America (Cambridge University Press, 2006, 118-135).  Holmes is discussing American attitudes to torture but I think it applies to the other exceptions I’m discussing in this project, including the subject of this post, trial by military commission.  Holmes suggests that regardless of the (in)ability of torture to provide good intelligence, its value for the Bush administration lay in signalling America’s willingness to do shocking things in the name of national security.  Torture has its own ‘logic of appropriateness’ so to speak.  I find this a convincing explanation for why the Bush administration was predisposed to believe and argue that torture works to make America safer.  Deciding to use unusual interrogation techniques spoke to conservatives who believe that there is a trade-off between liberty and security.  What is more it spoke to a conservative image of the United States, which sees it as the leader of the liberal world because only it (and certainly not those lily-livered Europeans) is capable of taking the tough decisions that are necessary to defend liberty.  The act of deciding the exception – whether it be to use torture or to prosecute terrorists in military commissions – appears to be driven by a genuine perception of the threat, but that perception is itself influenced by a need to justify responses that are preferred by conservatives because they demonstrate American exceptionalism.  Liberals approach this policy choice from a different direction.  While they can make realist compromises of principle in situations of exceptional insecurity they are less inclined to define the contemporary situation in such terms because unlike conservatives they do not have a need to demonstrate American difference through national security policy.

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About Jason Ralph

Jason Ralph, Professor of International Relations, University of Leeds
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