Terrorism Trials: Military Commissions

USG Opposes Khadr's Bid to Lift Stay, Vacate Conviction Based on OLC Memo

By Wells Bennett
Monday, July 7, 2014, 4:32 PM

Today, counsel for the United States asked the Court of Military Commission Review ("CMCR") to bat away Omar Khadr's recent effort to lift the stay of his appeal to that court, and to have his guilty plea overturned.

The D.C. Circuit's long awaited resolution of al-Bahlul stood to affect Khadr's appeal; thus the CMCR had stayed the latter, pending further action by the upper civilian court.  The defense's filing in Khadr nevertheless asked the CMCR to resolve the case immediately, and relied heavily on Footnote 44 of the OLC's recently-released memo regarding the al-Aulaqi drone strike. That notation essentially said that by taking part in the al-Aulaqi operation and by otherwise obeying the laws of war, in the context of lawfully authorized hostilities, civilian CIA personnel would not enjoy a combatant's immunity from prosecution under domestic law---but also would not violate international law.  Khadr's lawyers seized on this feature of the memo, as evidence in support of their claim that Khadr's military commission guilty plea---to, among other things, a charge of "murder in violation of the laws of war"---should be tossed out.

The pertinent part of the government's filing says:

The Court should deny Omar Ahmed Khadr’s motion to lift the stay and vacate his convictions because there has been no change in the underlying basis for the Court’s March 7, 2014 Order holding this case in abeyance: the en banc Court of Appeals for the District of Columbia Circuit has yet to issue its decision in al Bahlul v. United States, and the resolution of the questions before the Court of Appeals in that case concerning the Military Commission’s subject matter jurisdiction continues to have “a material bearing on the disposition of a significant issue” that Khadr raises in this Court. Abeyance Order 2.

Further, the Office of Legal Counsel Memorandum regarding the “Applicability of Federal Criminal Laws and the Constitution to Contemplated Lethal Operations Against Shaykh Anwar al-Aulaqi” (“OLC Memorandum”) is irrelevant to Khadr’s case. Footnote 44 of the OLC Memorandum—from which Khadr creates a patchwork of snippets he quotes in his motion—addresses whether government actors’ involvement (CIA personnel) in a lethal operation against al-Aulaqi during “lawfully authorized hostilities” would cause the operation to violate the laws of war. Memorandum from David J. Barron, Acting Ass’t Att’y Gen., Office of Legal Counsel,  U.S. Dep’t of Justice, to the Attorney General, Applicability of Federal Criminal Laws and the Constitution to Contemplated Lethal Operations Against Shaykh Anwar al-Aulaqi 33 n.44 (July16, 2010) (“OLC Mem.”). In answering this limited question in the negative, the OLC did not “explicitly conclude[] 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.” Mot. 3. And it did not purport to address the issue Khadr seeks to litigate here, after having pleaded guilty with the advice of counsel: whether a non-governmental actor’s involvement in a lethal operation during hostilities against a State that were not lawfully authorized would be traditionally triable by military commission. See Appendix to Br. of the U.S. on the Court’s Lack of Authority To Hear This Case at App. 75-83 (filed Dec. 19, 2013) (Stipulation of Fact, PE 12, United States v. Khadr (U.S. Mil. Comm’n Oct. 13, 2010)). Footnote 44 is irrelevant to this case, and the Court should disregard it.

Khadr nonetheless argues that the Court should vacate his convictions because the OLC Memorandum does not mention the system of common law applied by U.S. military commissions. Mot. 3. According to Khadr, this disposes of his case because the only plausible explanation “is that no such law exists.” Id. Khadr’s logical leap is unsupported, particularly because, as explained above, the OLC Memorandum does not address whether a military commission may be used to punish a non-governmental actor’s involvement in lethal operations during hostilities against the State that are unauthorized by law. See OLC Mem. at 33 n.44. So a discussion about the law, the absence of which Khadr notes in his motion, was not necessary to the memorandum’s analysis. The OLC Memorandum offers no basis for lifting the stay or vacating Khadr’s convictions. The Court should accordingly deny the motion.