As readers of this blog will know, after the Second Circuit released a redacted copy of the OLC’s “drone memo,” those of us who represent Omar Khadr filed a motion with the U.S. Court of Military Commission Review (“CMCR”) arguing that it undermined the validity of his convictions. In due course, the government filed its opposition to the motion, which somewhat predictably argues that the OLC’s analysis is not relevant to the case. As we were about to file a reply, the CMCR denied the motion to vacate, albeit “without prejudice.” Thus, the issue is not going away any time soon.
As its prosecution of Mr. Khadr was nearing trial in 2010, the Department of Defense and the CIA were contemplating a drone strike against Anwar al-Aulaki, an accused al-Qaeda operative located in Yemen. In April 2010, President Obama placed al-Aulaki on a list of people whom the United States was authorized to kill because of terrorist activities. This contemplated action raised special legal concerns, not only because al-Aulaki was an American citizen. CIA officials are not members of the armed forces entitled to combatant immunity, but were being asked to directly participate in the use of military force.
The worry, according to a New York Times report, was that CIA officers involved in the drone program might be exposed to war crimes liability for their actions, specifically because of Mr. Khadr’s prosecution for substantively identical conduct:
But as the Khadr hearing approached, Harold Koh, the State Department legal adviser, pointed out that such a definition [of unprivileged belligerency] could be construed as a concession by the United States that C.I.A. drone operators were war criminals.
In light of those concerns, in July 2010, the Justice Department’s Office of Legal Counsel issued a comprehensive 41-page memorandum (the “OLC Memo”) setting forth binding legal guidance to the Executive Branch on the use of military force in counterterrorism operations.
When the OLC Memo came to light, we immediately asked the CMCR – the military commission appeals court where Khadr’s case has been languishing without progress for nearly a year – to vacate his convictions, because the OLC’s analysis directly undermines the theory of criminality the government had been asserting to support the charges in this case. The government has conceded that Khadr did not violate either a pre-existing statute or the international law of war. Instead, in Khadr’s military commission, it staked its case entirely on the theory that any hostile act by an unprivileged belligerent is a “war crime” under a purported domestic common law. In particular, the prosecution argued “it is legally sufficient … that the accused engaged in a hostile act while an unprivileged belligerent,” which it characterized as a part of the “American common law of war.” As we pointed out in our recent motion to vacate Khadr’s conviction, the OLC concluded that a person’s liability for a war crime turns on his actions, not his belligerent status. In other words, unprivileged belligerency is not itself a war crime.
In response, the government made the remarkable assertion that the OLC Memo is “irrelevant to Khadr’s case” and should be “disregard[ed]” by the court. Why? Because CIA officers are civilian “government actors” engaged in “lawfully authorized hostilities,” whereas Mr. Khadr is a “non-governmental actor” who engaged in hostilities that were not authorized by a State.
But this artificial distinction between state and non-state actors flies in the face of the plain language of the OLC Memo. With respect to the participation of “CIA personnel” in combat operations, the OLC acknowledged that “by virtue of their not being part of the armed forces, [they] would not enjoy … immunity from prosecution under the domestic law of the countries in which they act for their conduct in targeting and killing enemy forces.” CIA officers who participate in armed conflict are therefore “government actors who are not entitled to the combatant’s privilege.”
Nevertheless, the OLC found that their status as unprivileged belligerents does not make their participation in hostilities a war crime, provided “their lethal activities are carried out in accord with the laws of war.” Indeed, the central legal precedent for the use of military commissions to try unprivileged belligerents is Ex parte Quirin, 317 U.S. 1 (1942) [LINK]. The defendants were members of the German military, and were thus unquestionably state actors. They were convicted of war crimes, not because they were unprivileged belligerents, but because their specific acts rendered them, as the Quirin Court put it, “offenders against the law of war subject to trial and punishment by military tribunals.”
Moreover, the OLC’s analysis is consistent with the standard definition of privileged belligerency in international law, which Congress expressly incorporated into the statute that governs this proceeding. The most pertinent provision of the Military Commissions Act (“MCA”) defines a “privileged belligerent” as “an individual belonging to one of the eight categories enumerated in Article 4 of the Geneva Convention Relative to the Treatment of Prisoners of War.” As the OLC recognized, civilian CIA personnel do not fall within one of the eight enumerated categories of persons entitled to be treated as a prisoner of war under international law. Q.E.D., if a CIA officer participates in a “conflict subject to the laws of war,” he is necessarily an “unprivileged belligerent.” (I would add that MCA elsewhere defines “unprivileged enemy belligerent” as a person “other than a privileged belligerent” who, among other things, “has engaged in hostilities against the United States.”). The government’s attempt to distinguish the OLC’s analysis on this point thus posits a nonexistent subcategory of privileged belligerents.
The relevance of the CIA officers’ status as government actors to the question before the OLC is equally clear. In addition to analyzing their potential liability under the law of war, the OLC considered whether their participation in the drone program “would violate any statutory restrictions” under the federal code, in particular 18 U.S.C. § 1119, which prohibits U.S. citizens from “kill[ing] or attempt[ing] to kill a national of the United States while such national is outside the United States.” The OLC rejected a literal reading of the statute, because CIA officers---like other government officials---are entitled to claim the “public authority justification” for their lawful use of lethal force, which “applies to specific conduct undertaken by government agencies pursuant to their authorities” (original emphasis). Here, of course, the government declined to prosecute Mr. Khadr for any violation of federal law in an Article III court.
Accordingly, the OLC Memo directly contradicts the government’s theory of liability in this case, which treats unprivileged belligerency, by itself, as a war crime. If there were any substance to that theory, the OLC certainly would have mentioned it, if only to distinguish CIA officers as “state actors.” Pointedly, the OLC did no such thing. The government’s opposition therefore grasps at straws to avoid the inevitable conclusion that Khadr’s conviction lacks any legal foundation.
Sam Morison is an appellate defense attorney with the Office of the Chief Defense Counsel in DoD. He is counsel of record for Omar Khadr, whose appeal is pending in the U.S. Court of Military Commission Review. Previously, he was an Attorney-Advisor in the Department of Justice. He is the author of several articles on the military commissions, including Accepting Sosa’s Invitation: Did Congress Expand the Subject Matter Jurisdiction of the ATS in the Military Commissions Act?, 43 Geo. J. Int’l L. 1097 (2012).