I am keenly aware, as I acknowledged Monday, that I still owe Gabor Rona a response to his legal arguments. My initial response to his post took on only those aspects of his argument that imagined an American in Omar Khadr's shoes and speculated that I would object to treatment of that person that mirrored our government's handling of Khadr. Let me now turn to the legal substance of Gabor's letter.
Gabor makes several arguments, some of which are easier to answer than others. In particular, I want to focus on Gabor's contention that there was nothing illegal about Khadr's taking up arms against U.S. forces. So let's take Gabor's arguments out of order to address quickly those points that require less attention.
First, Gabor begins by denying that Khadr can reasonably be described as a terrorist: "Although there is no settled international legal definition of terrorism, it most certainly does not include targeting legitimate military objectives in an armed conflict."
I'm not going to argue about the margins of what does or does not count as terrorism. Khadr considered himself to be a terrorist, according to the stipulation of fact into which he entered (see paragraph 30). He joined and took training from Al Qaeda, a terrorist group. He helped manufacture IEDs for a related group, also a designated foreign terrorist organization. And he pled guilty to material support for terrorism. Though I suppose one could argue about whether or not the specific acts in which he took part would qualify as terrorism, I can't imagine that we're really going to split hairs here about whether it's reasonable to call an Al Qaeda-trained IED-maker a terrorist.
Second, Gabor argues that a "humane international consensus" exists that child soldiers should not be tried. I have no argument with this point except to say that the United States apparently dissents from that consensus---to the extent such a consensus really exists. I note as well that Khadr---unlike a lot of child soldiers---was not forced into service. He specifically agreed in his stipulation that he could have evacuated with the women and children, rather than participating in the firefight, but that he chose to stay with the fighting men. He specifically admitted that he would not have faced repercussions for leaving. The United States tries a great many teenagers who commit serious crimes as adults. While I don't love this habit, I'm not sure I would start its reform with Khadr.
Third, Gabor's most substantial point, in my view, is his argument that "targeting a legitimate military objective in armed conflict is not only not terrorism, it’s not a violation of the laws of war, let alone murder in violation thereof. That’s because civilian participation in hostilities in armed conflict is not a violation of the laws of war." Kevin Jon Heller, in Facebook comments in response to Gabor's post, elaborates:
It is not . . . a war crime to attack a combatant or member of an organized armed group, no matter who the attacker is or what ideology he endorses. And because attacking a combatant or member of an organized armed group is not a war crime, a military commission that has jurisdiction only over war crimes, no matter how fair, cannot legitimately prosecute the attacker. . . . I also look forward to Ben's response about civilian participation in hostilities---it is black-letter IHL that such participation may be domestically criminalized, but cannot be a war crime.
I did not argue either that targeting a legitimate military objective in armed conflict is a violation of the international laws of war or that civilian participation in hostilities is a war crime. But Gabor entirely ignores domestic law here, and Kevin goes beyond clear law when he suggests that Khadr's commission was illegitimate to the extent Khadr faced a charge that does not constitute an international war crime. The Military Commissions Act gives military commissions jurisdiction "to try persons subject to this chapter for any offense made punishable by this chapter, sections 904 and 906 of this title (articles 104 and 106 of the Uniform Code of Military Justice), or the law of war" (emphasis added). One of the crimes the MCA makes triable by commission is "murder in violation of the law of war." No doubt, had Khadr been convicted at trial, he would have had an argument on appeal similar to the arguments that Hamdan and Bahlul are advancing with respect to material support for terrorism and conspiracy---that these are not traditional war crimes and have no place before a commission. Had he gone to trial, moreover, the government would also have had to prove to the military jury that his acts violated the laws of war. That is, after all, an essential feature of the relevant offense. But Khadr pled guilty to the crime, thus relieving the government of these particular burdens.
Moreover, as Kevin acknowledges, the fact that an offense might not be a war crime is not the end of the conversation. That's because Khadr, whatever else one might say in his defense, is not a privileged belligerent entitled to combat immunity. And civilian participation in hostilities---in Kevin's words---"may be domestically criminalized." As the ICRC puts it in its commentary on the Third Geneva Convention, "Article 3 does not protect an insurgent who falls into the hands of the opposing side from prosecution in accordance with the law, even if he has committed no crime except that of carrying arms and fighting loyally." So in other words, the question is not solely whether the alleged conduct amounts to a war crime; it is also whether the sort of killing of which Khadr was accused is traditionally a domestic offense and whether, if so, it's the type of domestic offense traditionally triable by military commission.
I don't purport to be able to answer this question with confidence. I have not studied the relevant history carefully enough either to predict how the U.S. courts would answer this question or even to know for sure how I think they should answer this question. Speaking tentatively, however, I note that there does seem to be rather a history of prosecuting in military commissions the offense of fighting U.S. forces without the privilege of belligerency. As far back as the Lieber Code, the U.S. treated "Men, or squads of men, who commit hostilities . . . without commission, without being part and portion of the organized hostile army, and without sharing continuously in the war" as "not entitled to the privileges of prisoners of war" but to "be treated summarily as highway robbers or pirates" (see Article 82). In his 1896 treatise on military law, William Winthrop describes "certain classes [of men] who, though guilty of a violation of the laws of war, and punishable therefor, are not chargeable as spies." Who are these men? "One who passes the lines without authority as a mere letter carrier, is not a spy; nor is one who merely violates the rule of non-intercourse by trading with the enemy, or who simply gives intelligence to the enemy in violation of Art. 46. And so one who comes secretly within the lines with a view to the destruction of property, killing of persons, robbery, and the like, is not as such a spy" (see p. 769, emphasis added). Not a spy, and yet still punishable under some vision---presumably domestic---of the laws of war. Winthrop also notes the creation of military commissions during the Mexican-American War to try offenses including "[a]ssassination [and] murder, . . . whether committed by Mexicans or other civilians in Mexico against individuals of the U.S. military forces" (see p. 832). And he notes that a separate tribunal was set up to try "offences . . . against the laws of war," including "Guerilla warfare or Violation of the Laws of War by Guerilleros" (see pp. 832-833). The 1956 Army Field Manual on "The Law of Land Warfare" declares that: "Persons, such as guerrillas and partisans, who take up arms and commit hostile acts without having complied with the conditions prescribed by the laws of war for recognition as belligerents (see GPW, art. 4; par. 61 herein), are, when captured by the injured party, not entitled to be treated as prisoners of war and may be tried and sentenced to execution or imprisonment." The United States's position about Khadr, whatever one may say about it, does not appear to be new.
My point here is not that I'm certain that the courts would consider this history as establishing the validity of the charge Khadr faced in the forum in which he faced it. My point is, rather, that it is not adequate for Gabor and Kevin to say that the charge does not exist as a matter of IHL.
Gabor follows this point up by arguing that there's no such thing as an "unlawful combatant" under international law. I'm actually not certain what he means by this point or why it's important. Khadr was charged not with a status offense---though his status as an unprivileged belligerent certainly established the commission's jurisdiction over him. He was charged with specific crimes. So if Gabor means here that unlawful combatant status alone is not a war crime, the point is really just a reiteration of his prior one. And once again, I have no quarrel with it---except to emphasize that it does not mean that Khadr cannot be tried under domestic law or in a domestic tribunal, a military commission, granted jurisdiction to hear offenses under that law.
Finally, Gabor---like many other critics of the Khadr case---suggests that Khadr's plea was not voluntary, because he was facing indefinite detention absent some resolution of his criminal case. The implication among many of the critics is that Khadr's guilty plea should not be taken seriously and that he might still be innocent.
I would make two observations in response. First, this problem is not unique to military commissions. It would have been no different had Khadr been tried in federal court. The prospect of military detention backstopping a criminal charge is, to some degree, an inherent feature of charging with crimes people who are also detainable under the laws of war. The same problem arose when Ahmed Ghailani faced trial in New York, for example, and I don't recall that Human Rights First then took the position that no plea Ghailani could enter would be credible.
More importantly, the judge in the case engaged in a lengthy colloquy with Khadr, who had already signed his detailed, stipulation of fact. Based on the stipulation and the colloquy, which took place in open court, the judge specifically found that Khadr's guilty plea had been voluntary (see pp. 4201-4239). Through this process, Khadr had the assistance of at least three attorneys, who presumably helped negotiate the plea agreement and participated in drafting the stipulation. Surely Gabor is not suggesting that those attorneys counseled Khadr to knowingly implicate himself falsely to the commission, right? Surely he is not suggesting that they convinced their client to admit to committing offenses that he did not, in fact, commit. But if he's not suggesting that, exactly what is the point of raising questions about the voluntariness of the plea?