When it comes to figuring out who is with al Qaeda, Omar Khadr is not a close case.
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.
So, is Omar Khadr, a Canadian al Qaeda murderer of an American soldier, an “alien unlawful enemy combatant”? To doubt that, you would have to doubt that you are reading this … or, for that matter, breathing. It comes as no surprise, then, that he is among the relative handful of the remaining 380 or so Guantanamo Bay detainees who has been referred for a war-crimes trial before a military commission.
Nevertheless, on Monday, the commission threw out the charges of murder and maiming. The presiding military judge, army Colonel Peter E. Brownback III, reasoned that the military had established only that Khadr was an enemy combatant, not an alien unlawful enemy combatant. Thus, according to Col. Brownback, the commission lacked jurisdiction to proceed.
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.
Despite the champagne corks, however, a deep breath is in order. The decision to toss the charges is meritless, and should swiftly be set aside on appeal.
ALIEN ENEMY COMBATANTS
It is elementary that a court, including a military court, is not competent to entertain a case unless it has jurisdiction. This simply means that the conditions set by congress for the court’s intervention must be met. In this instance, jurisdiction for military commissions is now controlled by the Military Commissions Act (MCA), signed into law by President Bush at the end of 2006 (the timing is relevant for reasons I’ll get to presently).
Under the MCA, only “[a]lien unlawful enemy combatants, as defined in section 948a of this title, shall be subject to trial by military commissions[.]” So, the question arises, how does section 948a define alien unlawful enemy combatants (AUECs)? It says the term applies to:
an individual determined by or under the authority of the President or the Secretary of Defense — (A) to be part of or affiliated with a force or organization — including but not limited to al Qaeda, the Taliban, any international terrorist organization, or associated forces — engaged in hostilities against the United States or its co-belligerents in violation of the law of war; (B) to have committed a hostile act in aid of such a force or organization so engaged; or (C) to have supported hostilities in aid of such a force or organization so engaged.
That certainly seems to apply to Khadr. Yet, we quickly see one problem with this definition: It does not appear to require that a detainee be an alien — i.e., a non-American. Alienage, however, is palpably assumed. After all, the term being defined explicitly refers to “alien[s].” What’s more, in the preamble to the MCA, Congress noted that it was addressing those detainees subjected to military commissions as a result of President Bush’s November 2001 order concerning the “Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism” (emphasis added). And we further know that only aliens have been held at Gitmo — the few times (three in all) when combatants have been known or discovered to be American citizens, custody of them has been transferred to a brig inside the United States.
In any event, it would be a simple matter to establish whether or not someone is an American citizen. And even if we were to get hyper-technical and say the definition of AUECs is legally suspect because it does not expressly mention the patently obvious — i.e., that a detainee must be an alien to qualify — such a claim would be unavailing for a non-American. Generally speaking, one is not heard to complain about a statute unless he is personally prejudiced by its flaws. Only a U.S. citizen could be prejudiced by the possibility that the definition of AUEC could unwittingly result in his being found an alien combatant. As there are no U.S. citizen detainees at Gitmo, that is not a cause for concern.
UNLAWFUL ENEMY COMBATANTS
No, 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 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.
WE CAN DO BETTER
Imagine for a moment a statute that said a court could only try cases involving citizens of New York. Let’s say that, to make certain he had jurisdiction over a case, the presiding judge referred the narrow question of the defendant’s New York citizenship to a magistrate, who then made a finding that the defendant “was a U.S. citizen who had lived his entire life in Albany.” What Colonel Brownback has essentially done here is throw out the case because the magistrate didn’t come out and say, “the defendant is a citizen of New York,” even though, if you actually look at what the magistrate did say, it is pluperfectly obvious that the defendant is a citizen of New York.
That’s really all that happened here. 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.” It ought to be reversed when a sensible reviewing court takes a look, hopefully in short order.
A word of caution, though. Saying the prosecution’s position should be sustained here is a good distance from saying that, as a matter of policy, the military commission system is the best way to deal with detainees. The war on terror presents unusual issues — issues that can’t be neatly pigeonholed into either the military or civilian court model.
We ought to design a new national-security court, an amalgam of the military and civilian systems, to deal comprehensively with the war’s novel challenges: investigations, detentions, and trials in a war whose end is not only indeterminate but — unlike prior wars — difficult to imagine; a war which involves alleged terrorist operatives whose status will often be ambiguous (because they don’t wear uniforms) but who cannot be given the presumptions that favor ordinary criminal defendants (since it would reward and thus perilously encourage their flouting of the laws of war). That new system should employ civilian judges, who have great expertise in moving terrorism cases and are independent of the executive branch — something important to our allies, whose cooperation is vital if we are to prevail against our enemies. But to combat the proclivity of civilian judges to push the due process envelope, the proceedings should be predominantly military and hew to rules exactingly prescribed by Congress.
The war on terror is going to be with us for a long time. We need to get beyond the sloppiness, the interminable delays, and kerfuffles like Monday’s Khadr ruling. We need to stop bickering over legitimacy and construct something the nation can be comfortable with — a system with integrity that protects national security while affording adequate (i.e., due) process.