The Chickens Are Coming Home to Roost

(Also posted on Daily Kos.)

Friday brought another pre-trial hearing in the military commission case against Canadian Omar Khadr, the last Western national still being held at Guantánamo Bay. Now 22, Khadr was 15 when he was captured by U.S. forces in Afghanistan for allegedly throwing a grenade that killed a U.S. medic, Sgt. Christopher Speer. While the media coverage of Friday’s hearing focused on potential witness testimony that Khadr could not have thrown the grenade, there has been little coverage of a legal debate that threw into question the authority of the military commission here to try Khadr for Sgt. Speer’s murder.

Omar Khadr’s defense team argued Friday that the most serious crime Khadr is charged with—murder of Sgt. Speer—is not a war crime. The defense argued that Khadr cannot be tried for “murder in violation of the rules of war” in a military commission because he is accused of a homicide, not a war crime.

The laws of war are clear: Murder can be a war crime only if the victim belongs to a category of protected people during a battle, such as civilians or wounded soldiers, or if the perpetrator uses a prohibited method of warfare, such as feigning surrender or using a human shield. Khadr is charged with killing a soldier who was engaged in a firefight—not a protected person under the laws of war—and the prosecution never has claimed that he used a prohibited method of battle.

The prosecutors predictably tried to argue Friday that the usual rules don’t apply here. The prosecution based its argument almost entirely on legal texts that pre-date the Geneva Conventions (the core treaties that lay out the laws of war), displaying a breathtaking and deliberate ignorance of those laws. The prosecution’s redefinition of war crimes requires a break from the laws applied in all other post-Nuremberg war crimes tribunals.

Friday’s hearing revealed that this case should never have been brought before a military commission in the first place. The government could have properly charged Khadr in a U.S. federal court, but instead the current administration intentionally bypassed the U.S. legal system to create commissions outside the bounds of law. Now the chickens are coming home to roost: the government faces the possibility that the murder charges against Khadr will have to be thrown out as a result.

While the debate at Friday’s hearing was legalistic and technical, it is profoundly relevant to the current debate about what to do with Guantánamo’s detainees. In recent weeks, even as president-elect Obama has repeated his promise to close Guantánamo, some have used fear-mongering to argue we should open a new Gitmo at home by creating national security courts.

That the most serious charges against Omar Khadr may not even be tried by a war crimes court illustrates why it would be disastrous to import Guantánamo’s military commissions to U.S. shores. It also makes clear that it is time to transfer detainees accused of wrongdoing to U.S. criminal courts to face the American criminal justice system, rather than to perpetuate the Bush administration’s failed military commissions experiment.

President-elect Barack Obama will have to act quickly. Khadr’s trial is scheduled to start on January 26, six days after Obama takes office. And in what defense lawyer Lt.-Cmdr. Bill Kuebler labeled “a last-ditch effort to salvage this broken process,” a final pre-trial hearing has been squeezed in the day before Obama’s inauguration. On day one in office, Obama must shutter the military commissions, not tinker with the Bush administration’s broken system.

Update In an earlier version of this post, the fifth paragraph stated that the government could have properly charged Khadr in a U.S. federal court. This paragraph has been amended to clarify the fact that Friday’s hearing revealed that this case should never have been brought before a military commission in the first place.