02 June 2008

Government Removes Omar Khadr's Judge

In the normal course of legal practice, you can't remove a judge in the middle of a case because he's ruled against you on discovery and jurisdictional issues. But, Guantanamo Bay's Military Commissions aren't the normal course of legal practice, and the military has done just that in a pending Military Commission case.

After the jurisdiction ruling the military hadn't liked, it convened a military appellate court that hadn't been at place at the time that the appealed ruling was made, that reversed that decision.

Just this week, the military had defied the Military Commission judge's order of several months ago to produce medical and interrogation records in the government's possession concerning the man facing trial before it. But this defiance, rather than causing the government to be held in contempt of court, produced the removal of the judge, Army Col. Peter Brownback III, from the case at the direction of the Chief Judge of the tribunal.

Previously, Khadr's defense attorney was disciplined for criticizing the tribunal and quit the case, and his prosecutor resigned out of disgust with the system. Under current rules in the tribunal, Kahdr's new defense attorney will be told the identity of the witnesses against him, but Kahdr' will not be told their identity.

The Case

Canadian detainee Omar Khadr was captured in Afghanistan in July 2002 when he was fifteen years old.

Khadr, now 21, faces up to life in prison if convicted at Guantanamo on charges of murder, conspiracy and supporting terrorism. He is accused of lobbing a grenade that killed U.S. Army Sgt. 1st Class Christopher J. Speer during the firefight in which he was captured.

He also faces charges of attempted murder and spying. The charged ordinarily would carry the death penalty. As explained at greater length below, however, Omar Khadr's primary crime is being a soldier without a license recognized by the United States government.

He is the only Western citizen remaining in Guantanamo. Canada has refused to seek extradition or repatriation.

It isn't clear that he threw the grenade in question. Wikipedia, citing the Toronto Star, notes that:

In February 2008, the Pentagon accidentally released documents that revealed that although Khadr was present during the firefight, there was no other evidence that he had thrown the grenade. In fact, military officials had originally reported that another of the surviving militants had thrown the grenade just before being killed.

He allegedly met Osama bin Laden when he was ten years old, and was in his parents care until, at least, the month before he was captured.

Historical Background

Immediately before the U.S. and U.K. led invasion of the country, Afghanistan was at what had appeared to be the final days of a civil war between the Taliban, a fundamentalist muslim theocractic government that ruled most of the country, and a rebel group known as the Northern Alliance, made up of regional and tribal warlords, which had lost control of all but a small corner of the country.

The Taliban had emerged out of the chaos that had left Afghanistan effectively stateless in the wake of the civil war with occupying Soviet forces. The Taliban, since 1996 tolerated and was loosely allied with Osama bin Laden's al-Qaeda terrorist organization, which was behind the 9-11 attacks, which took place in 2001.

After 9-11, the U.S. demanded that the Taliban deliver up al-Qaeda leaders, shut down terrorist training camps and provide protections to certain foreign nationals in the country. The Taliban had counteroffered to try bin Laden in Afghanistan in an Islamic court, an offer that was immediately rejected. The counteroffer was promptly rejected and on October 7, 2001, the U.S. and U.K. invaded in a military effort that leveraged the rebels forces of the Northern Alliance and used the Northern Alliance as the core of a new regime. Before, October 7, 2001, the U.S. had not taken sides in this foreign civil war and had not clearly declared that collaboration with the Taliban amounted to supporting terrorism.

By July 2002, the Taliban had been defeated in most of Afghanistan by foreign troops allied with the Northern Alliance. At that point:

The Taliban, who during the summer of 2002 numbered in the hundreds, avoided combat with U.S. forces and their Afghan allies as much as possible and melted away into the caves and tunnels of remote Afghan mountain ranges or across the border into Pakistan during operations.

Omar Kahdr's firefight took place during these mop up operations. The Taliban itself lived to fight another day, regained a measure of military power, and continues to conduct an insurgency against the U.S. supported regime in Afghanistan, controlling some areas.

The conditions of his detention and interrogation have been inconsistent with anything that would be lawful for a prisoner of war, or a criminal defendant.

Legal Background

Under the "laws of war," uniformed soldiers with the recognized military of a sovereign nation who are captured are not guilty of war crimes or subject to military justice for killing enemy soldiers in battle. Instead, they are classified as prisoners of war and are subject to detention for the duration of the hostilities after their prisoner of war status is confirmed by a tribunal of the capturing power.

Child soldiers are subject to particularly lenient treatment, as they are viewed as both prisoners of war who are themselves victims of war crimes.

But the U.S. did not recognize Omar Kahdr as a uniformed soldier for a recognized military of a sovereign nation. While the Taliban and al-Qaeda both had organized forces involved in the civil war in Afghanistan, the U.S. did not recognize soldiers not in uniform and soldiers affiliated with the al-Qaeda part of the insurgency as eligible for prisoner of war status.

Murder by soldiers is not historically war crimes, conspiracy was made a war crime by the fiat of the Military Commission Act of 2006, and support of terrorism is largely a criminal law concept rather than a military law concept. Spying is the only historical war crime for which Khadr is charged, and the species of spying he is charged with is more that of a scout or reconnaisance soldier (observation of troop movements from afar), than the kind of human intelligence in disguise traditionally associated with spying as a war crime.

Someone who is not recognized as a legitimate soldiers is not protected by prisoner of war status and is instead criminally responsible for murder and other crimes for warlike acts. Without the protection of prisoner of war status, or reductions in culpability on account of his age, Omar Kahdr is, under the logic of the U.S. prosecution in the Military Commissions, culpable to the same extent that anyone who was involved in a murderous criminal gang. Indeed, under the kind of reasoning used in felony murder prosecutions in a criminal court, his involvement in the firefight may make him guilty of murder even if he didn't personally throw the grenade the killed the U.S. soldier.

But because Omar Kahdr is being classified as an "unlawful enemy combatant," he can be tried before a Military Commission. Unlike the criminal justice system, this system has not afforded him protections from harsh treatment while detained, coercive interrogations, and delay in having his status determined. Furthermore, even if he is acquitted of the charges he faces before the Military Commission, he can be detained indefinitely.


Omar Khadr has been though hell because he was a child soldier fighting for a military force in a foreign civil war that the United States refuses to recognize as a legitimate military force, at the behest of his father. If he had fought in the same war for a different unit within the same insurgency that was associated with the Taliban, and had worn a uniform, he would have been a prison of war entitled to special protections under international law as a child soldier. But, this isn't how civil war is conducted in Afghanistan.

The legal system he is being tried in fails to meet any recognizable standards of military or criminal justice. Every player in the legal process in his case has been subjected to questionable political interference.

Khadr has been detained for almost six years, which is longer than some U.S. troops who commited war crimes in Iraq and Vietnam that caused death have been sentenced to in U.S. courts-martial, under conditions that do not meet international standards or U.S. constitutional standards for human rights. The death penalty has not been ruled out for him, despite the fact that the events in question took place when he was 15 years old.

This case has not, and will not, make Americans safer. The connection between his participation in an Afghan civil war, and the 9-11 attacks on the United States, is remote. This is not the sort of case where punishing an opponent is so important that our national honor should be sacrificed in the process. He is not a big fish. He is guilty of being an ordinary low level soldier in an insurgency, like thousands of men now held captive in Iraq and Afghanistan have done in the course of the U.S. involvement in wars there. But they have not faced similar treatment, and we do not claim that the other soldiers killed in the Iraq War and war in Afghanistan have been denied justice as a result. The person who killed the soldier whose death this case seeks to vindicate is probably dead already anyway.

Many of the other Guantanamo Bay defendants facing Military Commission trials are similarly small fry bit players in a larger civil war that they signed up to participate in before the United States was involved. The process, moreover, is so tainted that it cannot legitimately condemn even genuine senior masterminds of terrorist attacks against the United States, as a handful are alleged to be.

There are a lot of law review articles and op-ed opinions that argue that Military Commissions are a necessary compromise in an age of terrorism. The United States has tried the idea now. It failed to deliver anything it promised to do and has impaired the national security of the United States and its ability to effectively fight terrorism. Fighting terrorism is first and foremost about being able to secure cooperation by holding the moral high ground. President Bush and his lackeys forfeited the moral high ground at Guantanamo Bay and in doing so, have put us all at risk.

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