I am very pleased to present a guest post from Professor Kent Roach, the Prichard Wilson Chair in Law and Public Policy at the University of Toronto. Most people interested in the subject matter of this blog will have encountered Prof. Roach's writings in the criminal law area (both domestic and transnational), which are authoritative. He is a distinguished and learned teacher, practitioner and advisor.
At the bottom of the post you will find a link to Prof. Roach's most recent book, The 9/11 Effect: Comparative Counter-Terrorism, which you can purchase at a 20% discount by following the link -- too good to pass up.
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The imminent return of Omar Khadr to Canada and the start of the trial of Khalid Sheik Mohammed and other alleged 9/11 conspirators have put military commissions back into the news. Military commissions as conducted at Guantanamo represent a new paradigm that fall outside the traditional laws of war and crime.
The first entry in Omar Khadr’s voluminous case file held by the US Department of Defence is illuminating. It is President Bush’s memo of February 7, 2002 noting that he accepted the Department of Justice’s opinion that the Geneva Conventions would not apply to either al Qaeda or Taliban detainees and that the actions of terrorists had ushered in “a new paradigm” that “requires new thinking in the law of war.” (Presidential Memo Regarding Detainees Feb 7, 2002 available at http://www.mc.mil/CASES/MilitaryCommissions.aspx)
The new paradigm as represented by the Military Commission Act first enacted in 2006 and revised in 2009 combines crimes such as murder, conspiracy and material support of terrorism which have traditionally been the preserve of criminal law with other crimes that have better recognized under the laws of war. The result is a process that remains controversial because it allows the state to allege crimes while depriving the accused of some of the benefits of the criminal trial process, most notably trial before a civilian jury. Conversely, it allows the state to use trial by military commission while depriving the accused of some combatant privileges that would normally be available under the laws of war.
The Military Commissions Act of 2006 did not authorize the use of secret evidence, but it did include a number of crimes that were not traditionally recognized in the law of war. Khadr was charged with murder and attempted murder in violation of the law of war even though his actions in throwing a grenade during a battle arguably were within the laws of war since it did not constitute killing by treachery or perfidy or killing with weapons prohibited by the laws of war. Khadr was also charged with conspiracy even though four judges in Hamdan 548 U.S. 557 at 598-611 concluded that conspiracy was not part of the laws of war.
Khadr was also charged with material support of terrorism, a charge clearly available under American criminal law where Khadr could be tried by a Federal Court exercising extra-territorial jurisdiction, but not one recognized under the laws of war. Finally, he was charged with spying which is an offence in the law of war, but one that does not apply to someone like Khadr who was not behind enemy lines.
Khadr’s lawyers before the military commission brought a large number of challenges to these charges. They argued that the commission did not have jurisdiction over crimes such as murder and conspiracy. They also argued that the military commission did not have jurisdiction because Khadr was a child solider. In a number of generally terse decisions, these motions were all rejected. In one ruling, Military Judge Brownback asserted that Congress had a reasonable basis for acting and that it simply recognized crimes that existed in 2002 when Khadr was alleged to have committed them. Ruling on Defence Motion to Dismiss Charge III for Lack of Subject Matter Jurisdiction 21 April 2008 Khadr (AEO89) available at http://www.mc.mil/CASES/MilitaryCommissions.aspx
He also denied the child solider motion on the basis that there were no age limits placed on the definition of unlawful enemy combatants in the Military Commissions Act and that these provisions would prevail even if treaties prohibited trials of a person for acts committed when he was 15 years of age. Provisions for trials of juveniles in federal court would also not apply because military commissions fell outside of the definition of federal courts. United States v. Khadr, Ruling on Def. Mot. to Suppress Evidence of Statements (Violation of Child Solider Protocol), (Aug. 15, 2008), available at http://www.mc.mil/CASES/MilitaryCommissions.aspx (follow “Omar Ahmed Khadr” hyperlink; under “Category” tab, select “Docket”; at the bottom of the page, follow “9” hyperlink; at the bottom of the page,; follow “Military Judge’s Order Denying Defense Motion to Suppress Evidence of Statements (Violation of Child Solider Protocol) (D-062)” hyperlink)
Khadr did not have speedy trial rights because of his lack of connection to the US and because he did not face a criminal prosecution under the Sixth Amendment. These judgments fall into a pattern of extra-legalism in which hyper-legalistic claims and claims about authority were marshaled in an unconvincing way in an attempt to legitimate a process that was fundamentally unfair.
The military judge denied a motion that all statements given by Omar Khadr be excluded because of his age. Even if the Optional Protocol to the Convention on the Involvement of Children in Armed Conflict prohibited such statements, the Military Commissions Act would take precedence. Military Judge Parrish subsequently found in August 2010 that while there was evidence of an interrogator telling Khadr a fictional story about an Afghan prisoner being raped in an American prison that the threat did not amount to torture and was not related to Khadr’s incriminating statements. He rejected the suppression motion in a 9 page judgment and it was shortly after that judgment that Omar Khadr plead guilty before the military commission. United States v. Khadr, Ruling on Suppression Motions D-097 and D-111, at 9, (Aug. 17, 2010) available at http://www.mc.mil/CASES/MilitaryCommissions.aspx (follow “Omar Ahmed Khadr” hyperlink; under “Category” tab, select “Docket”; at the bottom of the page, follow “2” hyperlink; at the bottom of the page,; follow “Military Judge’s Order Denying Defense Motions to Suppress the Accused Statements (D-097) and Video Tape (D-111)” hyperlink)
Concerns linger about the legitimacy of Omar Khadr’s guilty plea both in relation to the military commission’s purported jurisdiction over the offences and the pre-trial ruling that Khadr’s incriminatory statements were not tainted by threats that he would be raped in an American prison. The treatment of Khadr is relevant to KSM’s forthcoming trial. It suggests that military commissions will have an uphill and perhaps impossible battle to be seen as legitimate both because of the role of the military and because of the problematic expansion of war crimes under the Military Commission Act.
Kent Roach is the Prichard Wilson Chair in Law and Public Policy at the University of Toronto. His new book The 9/11 Effect: Comparative Counter-Terrorism which critically assesses counter-terrorism in the UN and nine countries is available at a 20% discount at http://www.cambridge.org/ca/knowledge/discountpromotion/?site_locale=en_CA&code=S11ROACH
