I generally resist the urge to comment on military commission matters, but in the wake of the No Man’s Khadr post, I’m going to fall off the wagon (hopefully just this one time).

According to Reuters, a military commission prosecutor challenged a member for cause (unsuccessfully) because “he agrees with the President”:

The rejected Army officer, a lieutenant colonel who had served in Europe and specialized in nuclear arms control, said “America seemed to lose its status as a beacon of freedom, liberty and justice” by conducting extrajudicial renditions, holding prisoners in secret locations and treating others inhumanely in Afghanistan and at Guantanamo.

“I don’t believe my position is any different from the president’s,” he said.

President Barack Obama has tried unsuccessfully to shut the Guantanamo detention camp and banned cruel, degrading or inhumane treatment.

Prosecutor Jeff Groharing, a former Marine major, said that Army officer showed “a decidedly hostile view of the government” and tried to have him dismissed as biased.

“He said repeatedly he agrees with the president!” Groharing exclaimed.

The judge refused to exclude the man but Groharing used the prosecution’s lone peremptory challenge to dismiss him without having to give a reason.

Jane Sutton, Keep or close Guantanamo? Military jurors weigh in, Reuters (Aug. 11, 2010).

This WaPo story summarizes the first day of hearing s in the Omar Khadr military commission hearing.  Khadr, a Canadian citizen, was 15 when he allegedly threw a grenade at US Special Forces in a firefight in Afghanistan.  The story’s last paragraph mentions that Army LTC Jon Jackson, Khadr’s defense counsel, passed out during today’s hearings and was taken to the base hospital.  Anyone know if LTC Jackson is OK?

UPDATE:  WaPo reports here that, “[LTC] Jackson responded to a medic’s immediate treatment within 30 seconds, and he was taken by ambulance to a base medical facility. There, doctors determined that he was suffering complications from gallbladder surgery he underwent six weeks ago.”  We wish our colleague a speedy recovery.

Here is a link to NIMJ blog coverage of the latest guilty plea in a militaruy commission case. The detainee, Ibrahim Al Qosi, pled guilty to providing logistical support to al Qaeda by acting as a cook, bodyguard and driver for Bin Laden. DoD’s press release, here, really doesn’t give much more detail on the nature of the charges. The linked charge sheet, here, I believe contains all of the charges against al Qosi not just the ones to which he pled guilty, but please correct me if I am wrong.

What we do know is that al Qosi won’t be getting credit for time served, like Salim Hamdan did, and walking out of Gitmo any time soon. The plea deal specifically waived the right to time served–though the new Commission Manual fixed that issue after Hamdan’s essentially time served sentence. The plea, according to the NIMJ Blog, also waives al Qosi’s right to appeal his “detention, trial or sentence, the right to challenge his conviction on collateral appeal, the right to file a habeas petition.”

The Judge Advoctes Association has taken this position on Section 1037 of House Bill 5136, which the No Man previously discussed here:

Section 1037 of H.R. 5136, National Defense Authorization Act for Fiscal Year 2011 charges the Inspector General of the Department of Defense with conducting an investigation of conduct and practices of lawyers, military and civilian, who are representing individuals the subject of either habeas corpus actions or military commissions.

The Judge Advocates Association opposes this legislation. The U.S. Department of Justice has initiated and is continuing to conduct an investigation into matters which are the subject of this proposed legislation. The Department of Justice is the agency with primary jurisdiction in these matters. The Judge Advocates Association believes it unwise to require another agency to conduct an investigation while the Department of Justice has an open criminal investigation.

Any concerns about ethical conduct of judge advocates are properly the responsibility of the appropriate military department Judge Advocate General or the Staff Judge Advocate to the Commandant of the Marine Corps.

[Disclosure:  while I'm a member of the JAA's board, I abstained from voting on this measure due to my previous duty as the military commission system's chief defense counsel.]

First, I have to correct something from my prior post, here.  In that post I said I agreed with Prof. Vladeck over at Balkinization, here.  In what I can only say was an oversight on my part, I missed this portion of Prof. Vladeck’s post:

I had hoped (perhaps naively) that the dust-up earlier this year over the “al Qaeda 7” (and the emphatic response thereto) had finally put to bed the repeated attacks on lawyers that have arisen since Cully Stimson’s spurious critique of the role of D.C. law firms in Guantánamo litigation in January 2007. But so long as Congress is seriously considering language like this, it seems that such lawyers will continue to have to defend themselves as much as they (and in order to) defend the rights of their clients.

The reason I mention this passage is the reference to Cully Stimson and the “al Qaeda 7″ in the same sentence without  mentioning that Mr. Stimson has (a) apologized for his comments about Gitmo lawyers in 2007, see here, and (b) called attacks on the “al Qaeda 7″ and even use of the term “shameful,” see CAAFLog coverage here.  I am not sure what Prof. V. meant by spurious, but I don;t think it encompasses Mr. Stimson’s later expressed beliefs.

Second, here is some new commentary for and against Sec. 1037 and its attempt to give the DoD IG investigatory responsibility over defense lawyers in Gitmo detainee cases:

• NIMJ here
• Rep. Jeff Miller, R-FL (the bill’s sponsor) here

[Disclosure: I am a member of the NIMJ Bd. of Advisors]

As Prof. Steve Vladeck summarizes, Sec. 1037 of the FY2011 NDAA:

[T]itled “Inspector General Investigation of the Conduct and Practices of Lawyers Representing Individuals Detained at Naval Station, Guantanamo Bay, Cuba,” instructs the Department of Defense IG to “conduct an investigation of the conduct and practices of lawyers” who represent clients at Guantánamo and report back to the House and Senate Armed Services Committees within 90 days.

Page 403 of the NDAA is where Sec. 1037 begins, see here.  Covered lawyers under Sec. 1037 include uniformed judge advocates and civilian counsel that represented Gitmo detainees.  The bill seems to be a resposne to the Fitzgerald investigation and facts leading up to it, see Newsweek here.  But, I agree with Prof. Vladeck that it is incredibly broad and could be read to sweep in almost every lawyer that ever practiced before the Commissions.

Here are some responses to Sec. 1037 of the FY2011 NDAA, ABA letter here and Prof. Vladeck at Balkinization here.

Not the Geneva Conventions I Know

I read with interest Captain (ret.) Keith Allred’s opinion piece in the Wall Street Journal “Military Commissions: The Right Venue For KSM”.  While I freely admit that I do not agree with most of his opinions, I find myself compelled to write this comment because of what I consider his mischaracterizations of the law upon which he bases those opinions.  I do not write simply to highlight what I believe are Allred’s errors.  Rather, because lawyers working within this field, most particularly military lawyers, have an obligation to know what the law of armed conflict does and does not provide, my hope is that this counterpoint will contribute to a fuller understanding of the Geneva Conventions.

Allred correctly observes that the law of war provides “both sticks and carrots” to encourage observance of the POW-civilian distinction.  In stating that Geneva’s mechanisms go beyond combatant immunity and targeting, and in addition provide for more favored/less favored treatment of certain types of belligerents, however, he makes claims that are unsupported by the treaties themselves. 

The first statement with which I take legal issue is where, in speaking about the 1949 Conventions, Allred states that “Central to this weighty objective [of preventing a repeat of civilian losses and suffering in World War II] was a scheme for clarifying who could and could not engage in hostilities.”  In fact, the 1949 Conventions provided no substantive clarifications regarding who qualifies as a “privileged belligerent” or “lawful combatant”, the standard that Allred seems to equate with those who can engage in hostilities.  All of the categories in Article 4, GC III of persons engaging in hostilities who qualify as POWs are drawn from Hague Convention IV, of 1907.  While GC III certainly clarified and expanded on many matters from earlier POW treaties, it neither expanded nor significantly clarified eligibility for POW status of persons engaged in belligerent acts.

Similarly, the Geneva Conventions do not contain any provision regarding who cannot engage in hostilities (nor, for that matter, does any other LOAC treaty).  While Allred is correct that the law governing international armed conflicts is based on a simple duality – POW or civilian, there is absolutely no basis in treaty law to support his claim that “civilians may not” engage in hostilities or that “civilians are prohibited from actively taking part in the hostilities.”  Quite simply, no treaty provision declares participation by a civilian to be a violation of the law, nor does any treaty provide for penal sanctions for civilians who do participate.  Far from Geneva being “a scheme for clarifying who could and could not engage in hostilities”, the key concept of civilian was not even defined until 1977, and even then only in the negative (according to AP I a civilian is, effectively, anyone who does not qualify as a POW).  Certainly, civilian participation in hostilities complicates the ability to distinguish between legitimate and illegitimate targets, so an affirmative prohibition might be a wise policy.  Nonetheless, no treaty actually addresses this difficulty by expressly, or even implicitly, prohibiting civilians from participating. 

Quite to the contrary, the reality that civilians will participate in hostilities is implicitly recognized in Article 5 of GC IV, which authorizes derogations from standard rights of communication for certain “protected persons [civilians]” whom a Party to an international armed conflict suspects “engaged in activities hostile to the security of the State.”  Additionally, of course, Common Article 3 of the Geneva Conventions affirmatively recognizes that civilians will engage in hostilities regulated by the Geneva Conventions –  CA 3 governs the conduct of parties engaged in non- international armed conflict.  By definition at least one party to a non-international armed conflict will be a non-State actor; and a non-State party to a conflict can only be composed of civilians. 

Indeed, the term “unlawful combatant” itself is inconsistent with treaty law.  While there are of course unlawful means and methods of warfare, as well as other unlawful acts that can be committed during armed conflict, there is in treaty law no such concept as an unlawful person, let alone an “unlawful combatant”.  As acknowledged by Allred, Geneva provides for only two types of person – POW or civilian, and mandates treatment based exclusively on that duality.  There is therefore no room in treaty law for a legally-significant third category such as “unlawful combatant” — the concept has no place within the bipolar scheme that is Geneva.  Finally, Article 44 of AP I uses the term “combatant” synonymously with Prisoner of War, so many modern commentators also avoid the term “unlawful combatant” because it is an oxymoron.  

Allred also makes the blanket statement that, pursuant to Geneva, “[c]ombatants may be attacked, civilians may not.”  This obviously incomplete characterization of the law may seem like a harmless generalization, but it is in fact central to two of his other incorrect claims about the Geneva Conventions.  The need to ignore the universally recognized truth that civilian participants in armed conflict may be targeted until they have laid down their arms or become hors de combat (in the language of Common Article 3), or  for such time as they are directly participating in hostilities (in the language of AP I),is related to his erroneous claims that civilian participation in hostilities is so antithetical to the Geneva scheme that it is itself a violation the law of armed conflict, and that a civilian who participates in hostilities is an “unlawful combatant”.  All three, interrelated claims are, at best, inaccurate generalizations or oversimplifications of what the treaty law actual says, or does not say.

Finally, I cannot even guess the legal basis for Allred’s claim that “the Geneva Conventions expressly contemplate tribunals for unlawful combatants that are less protective of their rights than the forum guaranteed to lawful combatants”.  The only extensive discussion of substantive and procedural law regarding prosecutions, to the extent that it can even be considered extensive, is with respect to POWs.  Coverage of those issues with respect to civilians is actually rather minimal, and ultimately the minimum standard for any prosecution comes down to Article 75 of AP I and similar articles in AP II (recognized as customary law despite their placement in treaties not ratified by the US).  Consistent with the discussion above regarding the term’s lack of legal significance, the trial of “unlawful combatants” simply is not addressed in a meaningful way in any law of armed conflict treaty.  There certainly is no affirmative recognition of the appropriateness to trying them in some sort of second-class system.

I will leave it to the courts to decide whether military commissions do, in fact, comply with the law of armed conflict.  And while there are many other aspects of Allred’s piece with which I also take issue, or find internally inconsistent, arguably they are not based on claims regarding the Geneva Conventions.  Reasonable minds may differ over what may be the best or most appropriate course of action between several options, and I respect Allred’s right to hold and promote his opinions.  It is only his claims regarding the treaty law relevant to those issues with which I have difficulty.

*Philip Sundel was an active duty Navy JAG, followed by a period as a legal advisor with the International Committee of the Red Cross, and is now a civilian in government practice.  At various points in his career has investigated, prosecuted, defended, and monitored the treatment of persons charged with violations of the laws of war.  This commentary is written in his private capacity.

Here is an interesting editorial from former Hamdan trial judge CAPT (ret.) Keith Allred. He advocates placing the 9-11 conspirators in the military commission system. While I agree with much of Judge Allred’s analysis. I think he omits a critical issue, that the 9-11 attacks, the primary charges against Khalied Sheik Mohammad and the other conspirators, were not acts committed on a battlefield. Thus, as I have posted about before, e.g. here, those crimes are not proper charges for a military commission. Rather, like the prior WTC bombers, they should be tried as terrorists and, if and when that process convicts and sentences them, locked up with their brethren in the secure facility in CO. As for the lingering issue of a potential acquittal, which I would say is just as likely if not more so in a military commission, considering that KSM has admitted his crimes in open court, see e.g. here, I don’t see how those that view that as a problem would be concerned.

Back in early February, we reported scuttlebutt that VADM MacDonald would be named the military commission system’s new convening authority.  And, as announced here, today it happened.

I found on Politico that CAAFlog contributor Cully Stimson and other former President George W. Bush administration lawyers have come out against Keep America Safe’s demonizing of DOJ lawyers that served as pro bono counsel for Gitmo detainees. 

A group that includes leading conservative lawyers and policy experts , former Independent Counsel Kenneth Starr and several senior officials of the last Bush administration [No Man: including Cully Stimson] is denouncing as “shameful” Republican attacks on lawyers who came to the Obama Justice Department after representing suspected terrorists.

I can’t say for sure, but I would guess that means 100% CAAFlog contributor disagreement with Keep America Safe’s statements on pro bono counsel. But, I’ll wait to hear from our other contributors.

Update:  Here is a link to the letter, or the text of it, I can’t quite tell.  Here is a good quote form the letter:

To suggest that the Justice Department should not employ talented lawyers who have advocated on behalf of detainees maligns the patriotism of people who have taken honorable positions on contested questions and demands a uniformity of background and view in government service from which no administration would benefit.