Terrorism Trials: Military Commissions

Defense: OLC Memo Supports Invalidation of Omar Khadr's Conviction

By Wells Bennett
Wednesday, July 2, 2014, 10:20 AM

I am actually a tad surprised that Monday's filing did not come a touch more quickly.  It seemingly deals quite a whack to Omar Khadr's 2010 plea of guilty to violations of the Military Commissions Act---including conspiracy, material support, and "murder in violation of the laws of war."  (The latter is roughly synonymous with participating in hostilities but without also obeying rules that otherwise would immunize someone for prosecution as a consequence of such participation.)

The basis of Khadr's liability was actions that predated the statute's passage---a feature of a number of prosecutions at Guantanamo, with which readers are familiar. Apparently spurred by the panel's ruling in Hamdan II, Khadr appealed to the Court of Military Commission Review ("CMCR") late last year.  He argued, among other things, that his conduct at the time did not amount to a war crime under the international laws of war. (The government, for its part, rejoins that such conduct did violate a body of domestic law, the so-called "U.S. common law of war," and that Khadr therefore was properly subject to trial by commission.) The CMCR in turn put the case on hold, pending action by the full D.C. Circuit in Al-Bahlul.

Now Khadr's lawyers emphasize the OLC memo---its 44th footnote in particular---as further evidence in support of the conviction's reversal, and as a reason not to await further input from the civilian court.  They also criticize the executive branch's internal and external positions on the issue: on the one hand, say Khadr's attorneys, there was OLC's 2010 view, that mere participation by the CIA in hostilities was not itself a war crime; on the other, there was the Khadr prosecution's seemingly contrary view vis a vis the accused---which government lawyers put forward in Khadr's criminal prosecution and afterwards.

On March 7, 2014, the Court ordered this case to be held in abeyance pending the D.C. Circuit’s decision in Al Bahlul v. United States, 2013 WL 297726 (D.C. Cir. Jan. 25, 2013) (per  curiam), en banc rev. granted and panel order vacated, No. 11-1324 (D.C. Cir. Apr. 23, 2013)  (en banc). However, the disclosure of a previously secret memorandum by the Justice Department’s Office of Legal Counsel (“OLC”), which provided authoritative legal guidance to the Department of Defense several months prior to Mr. Khadr’s guilty plea, vitiates the theory of criminality underlying this prosecution and therefore defeats the premise of the Court’s order.

On June 23, 2014, the Second Circuit issued the latest opinion in a long-running Freedom of Information Act dispute concerning the disclosure of classified information related to the government’s policy of using lethal force against terrorism suspects. New York Times v. U.S. Dep’t of Justice, 13-422-cv, slip op. (2d Cir. June 23, 2014) (copy attached as Exhibit A). The appendix to the court’s opinion discloses a previously secret memorandum prepared by OLC at  the request of the Department of Defense (“OLC Memo”), which “set[s] forth the Government’s  reasoning as to the lawfulness of the attacks.” Id. at *5. Dated July 16, 2010, the court found – and the government concedes – that OLC’s analysis of the legal framework for the use of military force in counterterrorism operations is binding on the Executive Branch and therefore “establishes the legal boundaries within which [it] can operate.” Id. at *27, 39, 43.

The government had been reluctant to officially acknowledge that officers from the Central Intelligence Agency (“CIA”), who are not members of the armed forces and therefore not privileged belligerents entitled to combatant immunity, directly participate in combat operations.1 The OLC’s legal analysis, however, emphatically rejects the view that “any hostile acts performed by unprivileged belligerents are for that reason violations of the laws of war.” OLC Memo at 33, n.44 (original emphasis). To the contrary, as long as an unprivileged belligerent’s “lethal activities [are] conducted in accord with the laws of war,” he cannot be branded a war criminal merely because he is “not entitled to the combatant’s privilege.” Id. Thus, the OLC Memo concludes that war criminality turns on a person’s actions, not his belligerent status. That is, whereas a member of the armed forces can commit a war crime, an unprivileged belligerent can participate in hostilities without necessarily violating the law of war.

Insofar as certain dicta in Ex Parte Quirin, 317 U.S. 1 (1942) has sometimes been read to suggest otherwise, the OLC Memo points out that the Supreme Court’s actual holding “focused on [the defendants’] conduct behind enemy lines.” OLC Memo at 33, n.44. Moreover, “the authorities the Court cited (the Lieber Code and Colonel Winthrop’s military law treatise) do not provide clear support” for the view that unprivileged belligerency, by itself, is a violation of the modern law of war. Id. “The contrary view ‘arises … from a fundamental confusion between acts punishable under international law and acts with respect to which international law affords no protection.’” Id., quoting Richard R. Baxter, So-Called “Unprivileged Belligerency”: Spies, Guerillas, and Saboteurs, 28 BR. Y.B. INT’L L. 323, 342 (1951).

The OLC Memo’s analysis is not limited to international legal authorities. It also analyzes at length whether the participation of CIA officers in combat operations violates the domestic law of the United States. Conspicuously absent from that discussion is any reference to a putative “U.S. common law of war.” The only plausible interpretation of the analysis is that no such law exists. If it did, OLC certainly would have felt compelled to address it in order to evaluate the lawfulness of the government’s conduct under that body of law. Accordingly, the only law relevant to assessing Mr. Khadr’s actions is the international law of war.

But even assuming arguendo that the “law of war” encompasses some version of federalcommon law, which is the relevant question at issue in Bahlul, OLC’s conclusion would be the same. To be actionable, a common law crime must be “firmly established” in state practice. Hamdan v. Rumsfeld, 548 U.S. 557, 602 n.34 (2006) (plurality). Here, the act of engaging in unprivileged belligerency cannot be a domestic common law crime, because the OLC explicitly concluded that the firmly established practice of the United States is to employ unprivileged belligerents in combat operations with the official sanction of the Political Branches. At best, the OLC Memo might be read to leave open the possibility that Congress may have the authority to prescribe new statutory war crimes prospectively, as Judge Kavanaugh has suggested, although the Court need not decide that question to resolve this case. Hamdan v. United States, 696 F.3d 1238, 1246-47 & n.6 (D.C. Cir. 2012). Hence, there is no longer any reason for the Court to await the outcome in Bahlul to decide the merits of this appeal.

Mr. Khadr entered a guilty plea in October 2010. It is undisputed that the crimes to which he pled guilty were neither preexisting statutory offenses nor violations of the international law of war. Instead, at the government’s behest, Mr. Khadr was instructed that his liability depended on the mere fact that he had participated in hostilities against the United States without meeting the criteria for the combatant’s privilege four years prior to the passage of the Military Commissions Act. Brief on Behalf of Appellant at 23-24.

As we now know, the government knew that this was a meritless legal position, because it had been rejected by the Office of Legal Counsel more than three months earlier. It knew Mr. Khadr’s conviction was fatally flawed in May 2011, when the Convening Authority issued his final action. It knew Mr. Khadr’s conviction was fatally flawed in September 2012, when he was treaty transferred to Canada to serve the remainder of his custodial sentence.2 And it knew Mr. Khadr’s conviction was fatally flawed in December 2013, when it urged this Court to dismiss the present appeal. Yet, at no time prior to the Second Circuit’s decision, did the government acknowledge that it had binding legal guidance by the Department of Justice that repudiated the theory of criminal liability it had been advancing to support the charges in this case.

As Mr. Khadr has previously pointed out, a prosecutor’s ethical obligation is not limited to defending a conviction at any cost. To the contrary, “[t]he advocacy function of a prosecutor includes seeking exoneration and confessing error to correct an erroneous conviction. … Any narrower conception of a prosecutor’s role would be truly alarming.” Warney v. Monroe County, 587 F.3d 113, 125 (2d Cir. 2009); see also Connick v. Thompson, 131 S. Ct. 1350, 1362 (2011) (“Prosecutors have a special duty to seek justice, not merely to convict.”) (quotation omitted).

Similarly, “[a] lawyer should not be able to proceed with impunity in real or feigned ignorance of authorities which render his argument meritless.” Golden Eagle Distributing Corp. v. Burroughs Corp., 801 F. 2d 1531, 1542 (9th Cir. 1986); see also Fusari v. Steinberg, 419 U.S. 379, 391 (1975) (Burger, C.J., concurring) (noting that courts “must rely on counsel to present issues fully and fairly, and counsel have a continuing duty to inform the Court of any development which may conceivably affect an outcome.”).