Outside the Beltway

Canadian Teen Omar Khadr Closer to Guantánamo Trial

James Joyner
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The trial of Omar Khadr, the 19-year-old Canadian accused of murdering SFC Christopher Speer, is finally moving forward at Guantánamo Bay.

Pentagon Moves To Try 19-Year-Old (Miami Herald)

The Bush administration moved closer Thursday to putting a Canadian teenager on trial at Guantánamo Bay, Cuba, assigning a Marine colonel to run his war-crimes court even as civilian judges have mostly stalled the process. The Pentagon named Col. Robert Chester, 51, a Marine since 1976, as presiding officer of the military commission for Omar Khadr, 19, who was captured in Afghanistan.

The Toronto-born teen is accused of multiple war crimes, including taking part in a July 27, 2002, firefight near Khost, Afghanistan, in which five Americans were wounded while attacking an alleged al Qaeda compound.

U.S. Army Sgt. 1st Class Christopher Speer, a Special Forces medic from New Mexico, died of his wounds 11 days later, in Germany. Another American lost an eye in the attack, and could be called as a witness.

The irony is that this case is controversial because the United States military is providing less due process than would be the case in an ordinary murder trial, yet far more due process than normally accorded unprivileged belligerents in a combat zone. Khadr should have been given a summary trial in Afghanistan and, if judged guilty, executed there. Taking him to Cuba and allowing this to drag on for years has made him a sympathetic figure.

Elsewhere:

Update: Substantial discussion in the comments about the nature of unprivileged belligerents and the moral issues surrounding this case.

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27 responses to “Canadian Teen Omar Khadr Closer to Guantánamo Trial”

  1. odograph Avatar
    odograph

    ah “normally accorded unpriviledged belligerents in a combat zone” is an interesting phrase.

    I thought this term was a new invention. Anybody have a reference to “unprivileged belligerents” previous to 2000?

  2. odograph Avatar
    odograph

    I was doing a little surfing, and noticed that the British did not recognize American rebels as POWs until a law was passed in 1782 classifying them as such.

    I don’t believe they ever “summarily tried and executed” anyone caught on a battlefield before (or after) that date.

    How do you suppose history would have judged them if they had?

    (if the crime was ‘taking part in a firefight’ i’m sure many rebels met that criteria.)

  3. James Joyner Avatar
    James Joyner

    Odo: The term is, so far as I know, of recent coinage. The concept, however, is as old as the law of war.

    The Geneva Conventions and other international agreements provide protected status for noncombatants and for combatants acting for their government while in uniform. Spies, mercenaries, and others fighting out of uniform are, with a few caveats, not entitled to either of those “privileged” statuses.

    Frederic Kirgis notes that,

    Geneva Convention III, article 4(A)(2) gives that status to members of militias and other corps not in the service of a state party to the conflict, only if they are commanded by a person responsible for his subordinates, they have a fixed distinctive sign recognizable at a distance, they carry arms openly, and they conduct their operations in accordance with the laws and customs of war. Al Qaida operatives would not meet those conditions if they acted independently from a government.

    Even unprivileged belligerents have certain due process rights, but they are lesser and different from those accorded EPWs.

  4. James Joyner Avatar
    James Joyner

    Odo: The laws of war (at least those relating to the conduct of war, or jus in bello, vice the justice of entering a war, or jus ad bellum) were just developing at that point. The Continental Army was a uniformed military force, though, fighting an open war. The people charged here are combatants fighting in another country and not under command of a national army. Those are very different statuses in the law of war and have been since they were first conceived.

  5. odograph Avatar
    odograph

    I just said that the British did not recognize the Americans as a uniformed military force until 1782:

    http://earlyamerica.com/review/2002_summer_fall/pows.htm

    Second, we know this coinage is about convenience. If Lincoln had wanted to be an SOB, he could have said that southern citizens were “unprivileged belligerents”

    Many of the reasons the British, and north Americans, made their choices apply today. It was to their advantage to take the high moral ground.

    Calling for the summary trial and execution of 15 year olds (age when captured) does not take the high ground. In fans the flames .. but then so often your posts fan the flames. I mean, you are a voice for endless war.

  6. odograph Avatar
    odograph

    If we follow your advice my little nephews are going to be serving in Iraq.

  7. James Joyner Avatar
    James Joyner

    Odo: Really, you should read and digest the discussion before responding to it.

  8. odograph Avatar
    odograph

    Did you write:

    Khadr should have been given a summary trial in Afghanistan and, if judged guilty, executed there. Taking him to Cuba and allowing this to drag on for years has made him a sympathetic figure.

    If I’m understanding you, a 15 year old (now 19), caught on a battlefield, in an open firefight, should have been tried and executed, yes?

  9. James Joyner Avatar
    James Joyner

    Odo:

    If I’m understanding you, a 15 year old (now 19), caught on a battlefield, in an open firefight, should have been tried and executed, yes?

    Yes. We try 15-year-olds for murder all the time and this one is killing American soldiers while fighting for foreign terrorists overseas. The only reason for not executing such a person is if there is reason to believe he has substantial intelligence value.

  10. odograph Avatar
    odograph

    James, either you have a sloppy mind or you are aware of the holes in your argument and are just trying to push all the hot buttons in your audience.

    1. Do we execute 15 year olds all the time?
    2. Do we equate all fighters with terrorists?
    3. Do you have evidence that this is a terrorist?
    4. Do you think executing 15 year olds advances pro-American feelings amongst Iraqis?
    5. Do you think executing 15 year olds increases the likelyhood that future Iraqi governments will be pro-American?
    6. Do you think executing 15 year olds increases our ability to work with other middle east nations?
    7. Do you think executing 15 year olds advances the American position world-wide?

    BTW, if there was evidence for #3 I’d be taking a different line on this.

  11. James Joyner Avatar
    James Joyner

    Odo: Evidence other than the fact that he was fighting with al Qaeda against U.S. troops and that his father was a senior al Qaeda leader?

  12. odograph Avatar
    odograph

    James, you just keep going deeper.

    8. Do we execute 15 year olds based on who their father is?

  13. odograph Avatar
    odograph

    The bottom line is that the British could have used your argument to hang 15 year olds they captured early in the revolutionary war. They didn’t, for all the right reasons.

    Honestly, your arguments sound more like Nazi/Soviet justifications for their suppression of resistance groups.

  14. James Joyner Avatar
    James Joyner

    Odo: For, what, the fourth time now: American soldiers, even in the War for Independence, fought in uniform. Khadr and company did not.

    And the fact that his father was a senior al Qaeda operative is certainly relevant buttressing evidence. But the son was a member, too.

    From the summary of charges:

    16. From 1996 to 2001, the Khadr family traveled throughout Afghanistan and Pakistan,
    including yearly trips to Usama bin Laden’s compound in Jalalabad for the Eid
    celebration at the end of Ramadan. While traveling with his father, Omar Khadr saw or
    personally met senior al Qaida leaders, including Usama bin Laden, Doctor Ayman Al-
    Zawahiri, Muhammad Atef, (&a Abu Hafs al Masri), and Saif al Adel. Khadr also
    visited various a1 Qaida training camps and guest houses.

    17. After a1 Qaida’s terrorist attacks against the United States on September 11,2001,
    the Khadr family moved repeatedly throughout Afghanistan.

    18. In the summer of 2002, Khadr received one-on-one, private a1 Qaida basic training,
    consisting of training in the use of rocket propelled grenades, rifles, pistols, grenades and
    explosives.
    19. After completing his training, Khadr joined a team of other a1 Qaida operatives and
    converted landmines into remotely detonated improvised explosive devices, ultimately
    planting them at a point where U.S. forces were known to travel.
    20. U.S. Forces captured Khadr on July 27,2002, after a firefight resulting in the death
    of one U.S. service member.
    CHARGE 1: CONSPIRACY
    2 1. Omar Ahmed Khadr did, in and around Afghanistan, from on or about June 2002 to
    on or about 27 July 2002, willfully and knowingly join an enterprise of persons who
    shared a common criminal purpose and conspired and agreed with Usama bin Laden,
    Ayman a1 Zawahiri, Sheikh Sayeed a1 Masri, Muhammad Atef (&a Abu Hafs a1 Masri),
    Saif a1 adel, Ahmad Sa’id Khadr (&a Abu Al-Rahrnan Al-Kanadi), and various other
    members of the a1 Qaida organization, known and unknown, to commit the following
    offenses triable by military commission: attacking civilians; attacking civilian objects;
    murder by an unprivileged belligerent; destruction of property by an unprivileged
    belligerent; and terrorism.
    22. In furtherance of this enterprise and conspiracy, Khadr and other members of a1
    Qaida committed the following overt acts:
    a. On or about June 2002, Khadr received approximately one month of one-onone,
    private a1 Qaida basic training from an a1 Qaida member named “Abu
    Haddi.” This training was arranged by Omar Khadr’s father, Ahmad Sa’id
    Khadr, and consisted of training in the use of rocket propelled grenades, rifles,
    pistols, hand grenades and explosives.
    b. On or about June 2002, Khadr conducted surveillance and reconnaissance
    against the U.S. military. Khadr went to an airport near Khost, Afghanistan,
    and watched U.S. convoys in support of future attacks against the U.S.
    military.
    c. On or about July 2002, Khadr received one month of land mine training.
    d. On or about July 2002, Khadr joined a group of A1 Qaida operatives and
    converted land mines to improvised explosive devices and planted said
    improvised explosive devices in the ground where, based on previous
    surveillance, U.S. troops were expected to be traveling.
    e. On or about July 27,2002, Khadr and other A1 Qaida members engaged U.S.
    military personnel when military members surrounded their compound.
    During the firefight, Khadr threw a grenade, killing Sergeant First Class
    Christopher Speer. In addition to the death of SFC Speer, two Afghan Militia
    Force members who were accompanying U.S. Forces were shot and killed and
    several U.S. service members were wounded.
    CHARGE 2: MURDER BY AN UNPRIVILEGED BELLIGERENT
    23. Omar Ahmed Khadr did, in Afghanistan, on or about July 27,2002, murder Sergeant
    First Class Christopher Speer, U.S. Army, while in the context of and associated with
    armed conflict and without enjoying combatant immunity, by throwing a hand grenade
    that caused Sergeant First Class Speer’s death.
    CHARGE 3: ATTEMPTED MURDER BY AN UNPRIVILEGED BELLIGERENT
    24. Omar Ahmed Khadr did, in Afghanistan, between, on, or about June I, 2002 and July
    27,2002, attempt to murder divers persons, while in the context of and associated with
    armed conflict and without enjoying combatant immunity, by converting land mines to
    improvised explosive devices and planting said improvised explosive devices in the
    ground where, based on previous surveillance, U.S. troops were expected to be traveling.

  15. odograph Avatar
    odograph

    No James, not everyone had a uniform.

    And the British did not recognize them as soldiers in any army. Did you read the bit about the British addressing their letters to “George Washingtion, Esq.” and the Americans returning them because “General Washington was in command of the American army but that plain Mr. Washington was unknown in the army.”

    You are second-guessing, and pretending the British took your position, when they clearly did not.

  16. odograph Avatar
    odograph

    I think you are taking the term “uniformed army” a little too literally. We know the British did not recognize them as such, and we know that they did not have uniforms in the early part of the conflict:

    In 1775, there were not enough uniforms in the Continental Army to distinguish the officers from their men.
    The Continental Congress tried to standardize a uniform of brown, but without any authority to raise money this was easier said than done. Officers wore remnants of old military dress; with no thought given to similarity of color. The enlisted men wore their work or hunting clothes. Many had no coat or shoes and wore handkerchiefs for hats. When Gen. George Washington took command of the Army at Cambridge, Massachusetts, he was obliged to develop badges in order that rank would be indicated at sight.

    Get that, “their work or hunting clothes”

    http://www2.powercom.net/~rokats/contarmy.html

  17. LJD Avatar
    LJD

    “Calling for the summary trial and execution of 15 year olds (age when captured) does not take the high ground.”

    Yes, we should just shoot them on the battlefield.

    This isn’t about wearing uniforms or not, it’s about punks with AKs.

  18. odograph Avatar
    odograph

    That does simplify things LJD.

    The thing is, it isn’t that much more complicated if the “punk with an AK” throws it down and surrenders. What you do is, call him a POW, keep him for a years, and then give him back to the democratically elected government of Iraq. What happens next is their problem.

    There isn’t a significant need here to open the moral can of worms. It isn’t like we need to let him out to settle in San Diego.

  19. James Joyner Avatar
    James Joyner

    Odo: Your contention, then, is that al Qaeda would have been in uniform if only they had the financial wherewithal? And that, in any case, they were a legitimate military force fighting under the auspicies of their government?

    And what about

    BTW, if there was evidence for #3 I’d be taking a different line on this.

    I’ve provided evidence.

  20. odograph Avatar
    odograph

    Are you inventing a new military law, that armies should buy uniforms when they can afford them?

    Perhaps our revolutionary army should have bought uniforms first and guns second?

    And #3 said he was a terrorist. Have you documented acts by this persron off the battlefield, targeted against civilians?

  21. odograph Avatar
    odograph

    Isn’t it true that successufl insurgencies tend to buy uniforms … after they win?

  22. odograph Avatar
    odograph

    We’re going down the wrong path again anyway. The question isn’t whether you (or this administration) can make a rule under which this 15 year old will get the death penalty.

    The question is whether that really advances our national interest (and preserves our morality).

    I argue that it is morally questionable, and undermines our national interest. As I said, calling anyone collected on a battlefield a POW is cleaner, simpler, and (considering that we get to re-export them to Iraq) more effective.

    Now, if you can catch someone laying a bomb in an Iraqi city, by all means try them in Iraqi courts for attempted mass murder.

  23. LJD Avatar
    LJD

    A couple of things…

    This enemy is one that has been known to wear and remove uniforms (if not of the Iraqi Army, then the Police), or carry weapons, toss them, and access addtional cached arms, when convenient.

    The individual in this case was not simply “collected” on the battlefield. It sounds to me like witnesses are capable of putting him in the action.

    Again, he’s lucky to have drawn breath for this long, considering what he did and to whom.

    So how is the “morality” any different with a 15-year old terrorist than a 80 year old one? What if the little punk was “laying a bomb in an Iraqi city”? Any idea how many minor Somalis were killed in Mogadishu in ’93?
    I think you have some assuptions that you need to work through.

  24. DC Loser Avatar
    DC Loser

    Speaking of uniforms, what does James think about our SOF guys running around Afghanistan with beards and dressing in all sorts of non-uniforms carrying weapons and shooting them at people?

  25. Mark Avatar
    Mark

    Isn’t it true that successufl insurgencies tend to buy uniforms … after they win?

    I see it now! We let Al-Qaida win in Iraq and then wait for them to buy uniforms, then odograph saves his precious little Omar Khadr from a big, bad trial in Gitmo.

  26. James Joyner Avatar
    James Joyner

    DC Loser: My understanding from my training as a cadet was that soldiers caught in a combat zone disguised in mufti were automatically considered spies. Apparently, though, it’s a bit more complicated than that.

    There was a good discussion of this topic in a DoD news conference in April 2003:

    Briefing on Geneva Convention, EPW’s and War Crimes

    Q: Yeah, can you help us, we’ve been struggling with this one over the last several days, and that is the issue of in uniform and out of uniform. Just as a specific issue, American forces do operate out of uniform in some settings. In Afghanistan, virtually all of the special operators operated out of uniform. Why is that considered a war crime, or is it only operating out of uniform in combination with other kinds of behavior?

    PARKS: Let me first make a slight correction. Most of the Special Forces in Afghanistan operated in uniform, full uniform. There were some who worked in what we referred to as a non-standard uniform that was at least a partial uniform so they could be identified. They also carried their arms openly.

    The basic distinction between those types of operations where there was no attempt to conceal their combatant status, and what we’re saying with the Fedayeen Saddam in Iraqi is that they are purposely concealing their combatant status, concealing their weapons, wearing no part of a uniform, wearing no distinctive device, in order to engage in acts of treachery or perfidy, as I referred to earlier. They are purposely using the soldiers’ — the U.S. soldiers’ respect for civilians as a way to conceal their intent and engage in treacherous killing of coalition forces. So there is a big difference between the two.

    […]

    Q: I want to make sure I’m totally clear on this. When it comes to U.S. military uniforms, what is the bare minimum that is required to be considered “in uniform”? Is just wearing one’s weapons openly enough?

    PARKS: All right. Let me sort of break that in two places. Ninety-nine-point-999 percent of the time, our forces are going to be in full uniform.

    In those rare circumstances where you might have someone in the military operating with indigenous personnel, which we saw in World War II in Nazi-occupied Europe and places like that, the basic requirements are that they be under the command of someone responsible for the subordinates; wear some sort of distinctive device, which can be a hat, a scarf, an armband, something like that, an American flag on their body armor; and carry their arms openly; and finally, most importantly — this is where the contrast comes with the Fedayeen Saddam — carry out their operations in accordance with the law of war.

    Does that help?

    Q: So a hat, a scarf, an armband —

    PARKS: Are considered the types of things — if it’s something that’s distinctive to the forces with whom you’re operating. Obviously, you’ve got a group — let’s say an element of indigenous personnel — they tend to wear some sort of distinctive device, for their own identification of one another. And that’s distinctive from what you see on a traditional international armed conflict conventional battlefield, where you have uniformed forces meeting uniformed forces.

    The other factor there is one I mentioned earlier, though, and that is, you are not intending to pose as a civilian.

    Also of interest from FindLaw:

    Article IV of the Geneva Convention states that members of irregular militias like al Qaeda qualify for prisoner-of-war status if their military organization satisfies four criteria.
    [[Prisoners or unlawful combatants?]]

    The criteria are: “(a) that of being commanded by a person responsible for his subordinates; (b) that of having a fixed distinctive sign recognizable at a distance; (c) that of carrying arms openly; [and] (d) that of conducting their operations in accordance with the laws and customs of war.”

    Al Qaeda does not satisfy these conditions. Perhaps Osama bin Laden could be considered “a person responsible for his subordinates,” although the cell structure of al Qaeda belies the notion of a chain of command. But in any event, al Qaeda members openly flout the remaining three conditions.

    Al Qaeda members deliberately attempt to blend into the civilian population – violating the requirement of having a “fixed distinctive sign” and “carrying arms openly.” Moreover, they target civilians, which violates the “laws and customs of war.”

    Perhaps more importantly, this discussion from Daniel Moran is instructive:

    A soldier’s uniform signifies the process by which the right to use force is delegated to him, and also the subordination of his own, personal moral obligations to those of the community he serves. Whether he serves enthusiastically or not, voluntarily or not, is immaterial. He is not acting as an individual and is accordingly not a criminal. This distinction has survived the criminalization of war itself. The Charter of the United Nations outlaws the use of military force for any purpose other than individual and collective self-defense. Yet the soldiers of a state embarked upon illegal aggression retain the rights of legal combatants, provided their own actions conform to the norms and customs of war.

    […]

    The Second Hague Convention of 1907 remains the most authoritative statement on combatant status in war, despite many subsequent efforts to expand on it. Among these the most ambitious is the first Protocol Additional to the Geneva Conventions of 1949 (Protocol I), concluded in 1977. Protocol I, which the United States has signed but not ratified, tried to take account of the perfectly obvious fact that no guerilla organization or resistance movement worthy of the name could possibly survive strict adherence to the requirements set forth at the Hague. To this end it incorporated an elaborate discussion of circumstances in which a civilian combatant might retain his legal protections, while still (partially) concealing his weapons, and foregoing visible insignia. On the whole, however, even the most generous allowance for the practicalities of concealment and insignia can offer but limited relief from the basic logic of the Hague rules. Combatants who are also civilians must inevitably tread so close to the line separating deception from treachery that the law can offer them scant protection. It is, furthermore, difficult to imagine any legal regime under which this would not be true, for the simple reason that, in defining that line, law is the central issue.

    Treachery in war is readily distinguishable from legitimate forms of surprise, because it always involves a pretence that legal protection is being offered or requested. A company of soldiers who conceal their true numbers in order to induce their opponents to expose themselves imprudently have engaged in a legitimate ruse. A soldier who feigns surrender — or, for that matter, civilian status — for the same reason has engaged in treachery, because he has invited his enemy’s confidence in a legal norm that he intends to betray. The steady expansion of the legal protections extended to civilians in war — which have grown in proportion to the steady brutalization of war itself in the twentieth century — have only heightened the sense of treachery that attaches to any effort by a combatant to conceal himself among the general population. This is not simply a matter of perception, but of the logic of the law itself.

    The ultimate reason to have legal rules defining combatant status is not simply to ensure that the right of combatants to employ vicarious violence is respected, but simultaneously to ensure, as far as possible, that such violence is not directed against civilians. The essence of combatant status is to be liable, at any time, to deliberate attack. The essence of civilian status is to be immune from deliberate attack. Any legal norm that expands the rights of civilians to function as combatants is certain to erode that basic immunity. In legal terms, what is good for the guerilla must inevitably be bad for the civil society within which he hides. To suppose otherwise is to imagine the legal equivalent of a perpetual motion machine, which seeks to draw a circle that cannot be closed, but must inevitably spiral in upon itself. A terrorist or other “illegal combatant” who trades upon his adversary’s respect for the law is, in effect, using the law as a weapon. He cannot simultaneously use it as a shield, and he may well deprive those around him of its aegis as well.

  27. odograph Avatar
    odograph

    I probably shouldn’t let the most sophomoric taunts get under my skin:

    […] then odograph saves his precious little Omar Khadr from a big, bad trial in Gitmo.

    So I’m just going to ask you to explain it to me in hard-as-nails cost and benefits analysis. I say that the lowest costs and greatest benefits, for the US (no one else) come from treating people capture on the battlefield as POWs, holding them for some years, and then handing them back to Afghanistan/Iraq (wherever they were captured).

    If you think someone is unsalvageable, destined to be a terrorist for life, the rational thing to do (from a standpoint of realpolitik) is to suggest that Afghanistan/Iraq either off them or throw away the key.

    The only benefit I see, in distorting our justice system to try 15 year olds capture in battle, is that it satisfies some primitive blood lust. Try to rise above that, be cold and calculating, and describe what brings the maximum benefit for your kids and grand kids.

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