President Bush stated myth as fact when he called 9/11 an “unprecedented attack on our soil” (Nov. 8, 2006). This myth is that the mainland has never been attacked before. The greatest irony is that the term “patriot” is used in enunciating this myth while the myth obliterates the very attacks on American soil that were suffered and which forged the enduring values of our country.
These tribulations on our soil set the stage for the drafting of our Constitution and Bill of Rights. American Patriots faced overwhelming odds in attacks from the 50,000 British troops sent to put down the establishment of a new nation. As well, 30,000 Hessians, Scots Highlanders and other hired mercenaries poured into America by sea and through Canada in 1775-76. When, late in the Revolutionary War, the Americans were being routed from New York, the British burned and the Hessians ransacked dwellings. One British soldier wrote that the Hessians used bayonets to “put all to death that fell into their hands.” In that one battle, more than 1,000 patriots died.
Early on, the Americans lost the historic battle at Bunker Hill and 14,000 British troops and 5000 British sympathizers occupied Boston for 10 months. This was followed by attacks, often successful for the British, along the Eastern Seaboard, including Falmouth, Long Island, Lake Champlain, Newport, Princeton, and Danbury. Cities were burned and occupied by the enemy.
Just before the beginning of the Revolutionary War, John Adams, the future president, intervened on behalf of the young British soldiers arrested for the Boston Massacre. Adams believed that human rights demanded fair treatment of prisoners, a trial, and counsel, even for the enemy. He insisted on serving free as their counsel.
Habeas corpus, a right guaranteed in the Constitution is essentially eliminated in the 2006 Military Commissions Act, which sets up what has been described as a “kangaroo court” for non-citizens at Guantanamo. The newly reintroduced Restoration of Habeas Corpus Bill sponsored by Sens. Patrick Leahy, D-Vt., and chairman of the Senate Judiciary Committee, and Arlen Specter, R-Pa. should be passed. This bill will restore judicial procedure for prisoners caught in indefinite summary detention. [Excerpted from Koenig in Lansing State Journal, 9/23/07.]

Iranian President Ahmadinejad’s recent visit to Columbia University caused quite a bit of controversy. Although his responses to questions about human rights, the absence of homosexuals in the Islamic Republic, and the need to revisit the research behind the holocaust were somewhat amusing and perhaps revealing; the questions he did not answer are particularly noteworthy.

Specifically, how does he reconcile a claim to peacefulness and also want to wipe Israel off the map? Why doesn’t he fully cooperate with the UN with respect to his nuclear facilities? And why does Iran continue to support armed groups as a cornerstone of its foreign policy?

Regarding the latter, while a great deal of attention is given to Iranian involvement in the Iraq conflict, the comprehensiveness of Iran’s support to armed groups worldwide is often overlooked. In a recently posted article, “Veiled Impunity: Iran’s Use of Non-State Armed Groups,” Keith Petty examines the legal underpinnings of Iran’s support of armed groups and the legitimate threat this policy poses (full disclosure, I’ve worked with Keith on counterterrorism issues, he’s a bright legal scholar, an Iraq veteran and previously worked on international criminal law issues at the ICTY so he knows his stuff). Keith’s article focuses primarily on Iran’s backing of Hezbollah in Lebanon, Hamas in the Palestinian Territories, and Mahdi’s Army in Iraq, and the threat these groups pose to their host States. Keith writes:

“Surprisingly, Iran’s use of non-state armed groups as an extension of its foreign policy has not met significant deterrence. Many still believe that aggression can only be committed when a State openly attacks another State with military force, a misperception of jus ad bellum law. This paper suggests a closer analysis of what constitutes unlawful aggression under international law. Specifically, the issue is whether State support of non-state armed groups as a means of threatening the territorial integrity or political independence of another State constitutes unlawful aggression.”

International law supports defining Iran’s support to these groups as unlawful aggression. Mr. Petty states that there may be “an ‘effective control’ or ‘acknowledgement’ basis for imputing [the armed groups’] actions to Iran as required by the Nicaragua and Hostage cases [of the ICJ]. Further support is found in General Assembly Resolution 3314, which classifies the “sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, as an act of unlawful aggression.”

In spite of these standards, Iran’s support likely will not fit classic understandings of unlawful aggression, particularly where that finding would lead to the authorization of the use of force. He goes on to recommend timely deterrence options short of armed force, and proposes a mixed-bag of policy proscriptions.

Keith sums up his multi-faceted approach stating: “It is uncertain whether Iran’s support of non-state armed groups is tantamount to aggression vis-à-vis the host States [of Hezbollah, Hamas, and Mahdi’s Army]. The need to deter Iran’s conduct, however, is clear. While coercive measures have been considered, these are unlikely to be effective. For one, the use of force seems disproportionate to Iran’s more sophisticated, clandestine operations within the target States. As mentioned above, outright armed force has not been Iran’s policy. Rather, an equally sophisticated and multi-faceted approach is required to deter Iran’s foreign policy objectives.”

Such a timely piece is definitely worth the download and is sure to be cited by many. Full text available here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1013415

The U.S. Court of Military Commission Review reinstated charges against alleged Canadian al Qaeda member Omar Khadr. I’ve previously blogged about the charges against Khadr here.

Charges were previously dismissed by the Military Commission Judge, Colonel Peter Brownback. Colonel Brownback reasoned that he lacked jurisdiction to hear Khadr’s case because the CSRT failed to determine “unlawful enemy combatant” status, it merely made an “enemy combatant” determination.

The Government’s First Point

I attended oral arguments in this case back in August where the government presented two jurisdictional arguments. First, that Colonel Brownback erred by determining that the C.S.R.T. determination of enemy combatant simplicitir did not satisfy the jurisdictional predicate required by the Military Commissions Act. Instead the government argued that the determination should look not only to the classification made by the C.S.R.T. but also to the President’s determination that all members of the Taliban and al Qaeda are “unlawful combatants” and a similar determination by the then Deputy Secretary of Defense. The government also urged at oral argument (transcript here) that the court consider the C.S.R.T. determination in conjunction with the findings of fact made by the C.S.R.T. in attachment R-1.

The Court of Review’s Decision

Regarding the government’s first argument the Court of Review found that Colonel Brownback’s conclusion was correct and that a C.S.R.T. determination alone is insufficient to establish criminal jurisdiction over Khadr. In the words of the court the C.S.R.T. never discusses the “issue of ‘lawful’ or ‘unlawful’ enemy combatant status.”

“Mr. Khadr’s 2004 C.S.R.T. employed a less exacting standard than that contained in the M.C.A. for establishing ‘unlawful enemy combatant’ status. A detainee could be classified as an ‘enemy combatant’ under the C.S.R.T. definition simply by being a ‘part of’ the Taliban or al Qaeda, without ever having engaged in or supported hostilities against the United States or its coalition partners. While such a classification would certainly be appropriate for authorizing continued detention during ongoing hostilities, it does not address in any way the ‘lawful’ or ‘unlawful’ nature of the detained combatant’s belligerency under the M.C.A.”

In an interesting comment the court finds, citing to Protocol I, Art 4(b) “Congress never stated that mere membership in or affiliation with the Taliban, al Qaeda, or associated forces was a sufficient basis for declaring someone to be an ‘unlawful enemy combatant’ for purposes of exercising jurisdiction over that person. In the M.C.A., military commission jurisdiction is limited solely to those who actually ‘engaged in hostilities or who…purposefully and materially supported hostilities…” While Khadr’s C.S.R.T. may have adequate information to make such findings against him, it could not have done so based on a definition which was established two years later.

The Government’s Second Point

The Government futher contended that even if the Court of Review were to find that the C.S.R.T. was insufficient to establish the jurisdictional predicate, Colonel Brownback or any other military commission judge could make such jurisdicitional findings. Lyle Denniston at SCOTUSBlog refers to this as broadened powers . I slightly disagree with this characterization, and perhaps I’m making an overly picky point (it was merely listed in the title of the post) but the government’s argument was that this is a power that the M.C.A. grants to the military commission judge as an “other competent tribunal” and is consistent with procedures found in courts martial, I’m not sure that I’d characterize it as a broadened power (but it has much broader implications which I’ll detail below).

The Court of Review’s Decision

Clearly the government’s arguments are in the alternative, as pointed out by Judge Francis in the transcript record at Page 14, Line 10. The court thus rejected the government’s first point and ruled in favor of the government’s second point. The court found that the government should have been afforded the opportunity to present evidence in support of its position on jurisdicitional issues and that the military commission had the power to consider its own jurisdiction. Making a point of this the court cited to arguments made by Captain Keith Petty at the military commission hearing in Guantanamo. The court stated:

The assistant prosecutor then specifically listed the evidence the Government would present in support of Mr. Khadr’s “unlawful enemy combatant” status, which inter alia, included a videotape of Mr. Khadr ‘engaged in unlawful combat activities including wearing civilian attire and making and planting roadside bombs,’ admissions made by Mr. Khadr, and other statements that implicated him in conducting such unlawful activities.

The points made here by the court, by the government and never contested by the defense are that evidence clearly exists to establish that Mr. Khadr was an unlawful enemy combatant, the question is whether that determination was properly made and who may make that determination.  The court finds the determination was not properly made, but the military commission judge may make such a determination.

Broader Questions

First, the court highlights a question posed by Judge Brownback, which careful readers should also wonder about: Did “anyone [think] about going back and doing new [combatant status] review tribunals.” I am certain that the deficiencies in the C.S.R.T. process were well known to the Defense and Prosecution (but remedying them was not their job), and those deficincies were made clear to political appointees within the administration. The jurisdictional problems we are reading about could have been remedied by creating a panel perhaps named a “Military Commission Jurisdiction Panel” or something similar.  This panel would be separate from the C.S.R.T., and would fill the role of an “other competent tribunal” to make jurisdictional decisions as set forth in the M.C.A. Why the administration allowed the military commission process to flounder through appeals like this —especially when military commissions are supposed to be the centerpiece of the President’s counterterrorism policies is anyone’s guess. One can chalk it up to incompetence, hubris, or internal disagreements amongst members of the administration, but no one can argue that they did not see this coming.

In the short term, this issue is certainly headed to the D.C. Circuit, where according to the M.C.A. the government has an appeal as of right and the defense must petition for the right to be heard. Assuming the D.C. Circuit decides to take the case and upholds the Court of Review or if they refuse to hear it we will likely see charges filed against at least 7 more detainees (the remaining 7 originally charged under the defective pre-M.C.A. process.)

More importantly though, in the short term we will see an interesting twist (and one which the government conceded at oral argument) to the process. If, as the Court of Review has held, the military commission can make a jurisdictional determination then Khadr will have a right of jurisdictional discovery, and with that right he also will have the right to dispute findings that he is an unlawful enemy combatant. Thus, those who are, in the government’s eyes MOST culpable (e.g. those worthy of criminal charges) are now extended greater procedural rights than those who are “merely” detained as unlawful enemy combatants. The administration’s failure to act on a known problem has resulted in something of a quandry for them, expanding the rights of “the worst of the worst.”

Second, the easily identified jurisdictional problem is not unique, there were and are other issues the administration could have easily rectified. For example, the Court of Review ruled earlier this week that it was properly constituted (e.g. ruled on its own jurisdiction and composition). The issue was whether the Deputy Secretary of Defense, rather than the Secretary of Defense could establish the panel (the M.C.A. states that the Secretary of Defense must establish the panel). So, if the military commissions process is truly a priority for the administration this seems easily rectifiable, have the Secretary of Defense sign a memorandum establishing the panel or sign a memorandum stating that the Deputy Secretary of Defense was acting on behalf of the Secretary of Defense, instead they let it bounce around in the courts. The fact that the Deputy Secretary of Defense was acting on behalf of the Secretary of Defense may seem obvious to some readers, however as a matter of statutory construction it was not a clear cut issue (clearly, as it had to be briefed and argued and will likely be argued again at the D.C. Circuit). Another issue which was obvious to many and not rectified while the rules were promulgated was the requirement that the panel (the equivalent of the jury) make a sentencing determination. In the abstract this seems to make sense, however when a plea is worked out (as in Hicks) it was a glorious waste of time, effort and military resources to fly a panel of military members down so they could make a sentencing determination, only to have it immediately vacated by the judge in favor of the plea agreement.

Why do all of these issues exist? Who in the administration is responsible for remedying problems and ensuring that the military commission process proceeds without easily fixed obstacles? Don’t look at the JAGs, both the prosecution and the defense JAG teams were cut out of the development of the Manual for Military Commissions (Rules of Procedure and Evidence). As such the prosecution team is wrongly made to look like fools, carrying water for the administration by making arguments on behalf of the commissions and the propriety of their procedures. In my opinion that’s a job for the administration.  The JAG prosecutors just want to get to trial and have their evidence heard publicly. Colonel Davis (the Chief Prosecutor) has publicly stated he just wants to get into the courtroom to hold open public trials. He has repeatedly stated that he does not intend to go into closed session unless forced to do so. That sounds to me like the kind of trial the administration would want to have, why they are not clearing the procedural hurdles is a mystery. Moreover, the defense team is suffering through this administration ineptitude. Rather than being able to defend their case in court on the evidence they are instead left to fight their battles in the newspapers in Australia, Canada and here at home.

If the administration really takes the military commission process seriously they should find some trusted appointee to take charge of the procedural issues and keep this process on track. That does not mean find an appointee who will breathe down the neck of the prosecution or defense, that’s clear undue command influence. However, rectifying procedural errors are clearly tasks an administration lawyer could undertake. Why it has not happened is the story behind the story.

To Prevent and to Punish

AN INTERNATIONAL CONFERENCE
IN COMMEMORATION OF THE 60th ANNIVERSARY OF THE NEGOTIATION OF THE GENOCIDE CONVENTION

Friday, September 28, 2007
8:30 a.m. - 6:00 p.m. * Moot Courtroom (A59)
Case Western Reserve University School of Law
11075 East Boulevard, Cleveland, Ohio 44106

* The symposium will be webcast live and available after for viewing on demand at http://law.case.edu/lectures.

Sixty years ago, on June 11, 1947, Raphael Lemkin, working with the U.N. Secretariat legal staff, completed the first draft of the Genocide Convention, launching the intense negotiations that would conclude in the U.N.’s adoption of the Convention in December 1948. Today, the Genocide Convention has 137 parties, and after years of dormancy, the Convention has become an important legal tool in the international effort to end impunity for the worst crime known to humankind. The past year alone has witnessed important cases based on the Genocide Convention before the International Court of Justice, the ad hoc international criminal tribunals, and the domestic courts of several countries. To commemorate the sixtieth anniversary of the negotiation of the Genocide Convention, the Frederick K. Cox International Law Center at Case Western Reserve University is hosting a major international symposium featuring two-dozen of the world’s leading academic experts, high level government officials, and most distinguished jurists and practitioners in the field.   This symposium is serving as the annual meeting of the International Association of Penal Law (American National Section).  Articles generated by the speakers will be published in a special double issue of the Case Western Reserve Journal of International Law, one of the world’s oldest and most prestigious international law publications.

SCHEDULE
8:00 a.m. - 8:30 a.m.  Registration & Coffee

8:30 a.m. - 8:45 a.m. President’s Welcome
Barbara R. Snyder, President, Case Western Reserve University
Introduction
Prof. Michael Scharf, Cox Center Director, Case Western Reserve University
Presentation of AIDP Book and Article of the Year Award
Prof. Michael Kelly, Creighton University 

8:45 a.m. - 9:30 a.m.  “A History of Genocide”
Introduction: Prof. Kenneth Ledford, Case Western Reserve University School of Law
Juan E. Méndez, former U.N. Special Adviser on the Prevention of Genocide; President, International Center for Transitional Justice

9:30 a.m. - 9:45 a.m.  Coffee Break

9:45 a.m. - 11:00 a.m.  “The Origins of the Genocide Convention: From Nuremberg to Lake Success”
Chair: Don Ferencz, Director of the Planethood Foundation
Ben Ferencz, former Nuremberg Prosecutor
Prof. Henry King, former Nuremberg Prosecutor
Prof. William Schabas, National University of Ireland, Irish Centre for Human Rights, author of Genocide: The Crime of Crimes

11:00 a.m. - 11:15 a.m.  Coffee Break

11:15 a.m. - 12:15 p.m.  “Prevention: A Cross-Fire Exchange on Use of Force to stop Genocide”
Chair: Prof. Melissa Waters, Vanderbilt University School of Law (Visiting)
Roy Gutman, Pulitzer Prize winning journalist and Foreign Editor, McClatchy Newspapers
Prof. Michael Newton, Vanderbilt University School of Law
Prof. David Scheffer, Northwestern University School of Law, former U.S. Ambassador at Large for War Crimes Issues
Prof. Paul Williams, American University Washington College of Law

12:15 p.m. - 12:30 p.m.  Pick up Complimentary Lunch12:30 p.m. - 1:30 p.m. Luncheon Speaker
Introduction: Dean Gary Simson, Case Western Reserve University School of Law
Speaker: Robert Petit, Co-Prosecutor of the Extraordinary Chambers in the Courts of Cambodia

1:30 p.m. -1:45 p.m.  Coffee Break

1:45 p.m. - 3:00 p.m.  “Prosecuting Genocide”
Chair: Prof. William Burke-White, University of Pennsylvania School of Law
Eric Blinderman, former Deputy Director of the U.S. Embassy Regime Crimes Liaison Office in Baghdad
Prof. David Crane, former Prosecutor of the Special Court for Sierra Leone
Christine Chung, appointed by the International Criminal Court to prosecute its first case
Hon. Ra’ad Juhi, former Chief Investigative Judge, Iraqi High Tribunal
Robert Petit, Co-Prosecutor of the Extraordinary Chambers in the Courts of Cambodia

3:00 p.m. - 3:15 p.m.  Coffee Break

3:15 p.m. - 4:30 p.m.  “Defending Individuals Accused of Genocide”
Chair: Mark Ellis, Executive Director of the International Bar Association
Stuart Alford, Queen’s Counsel
Nicholas Stewart, Defense Counsel for Momcilo Krajišnik
Prof. Elies van Sliedregt, Vrije University, Amsterdam
Mischa Wladimiroff, Defense Counsel for Slobodan Milosevic

4:30 p.m. - 4:45 p.m.  Coffee Break

4:45 p.m. - 5:55 p.m.  “Judging Genocide: A Roundtable Discussion of the International Court of Justice and Genocide”
Chair: Prof. Christopher Joyner, Georgetown University
Prof. Mark Drumbl, Washington and Lee University College of Law
Asst. Dean Michael Peil, Washington University School of Law
Prof. John Quigley, Ohio State University School of Law, Counsel in the Bosnia Genocide Case before the ICJ
Prof. Leila Sadat, Washington University School of Law

5:55 p.m. Closing Remarks
Prof. Michael Scharf

6:00 p.m. - 6:30 p.m.  Reception in the RotundaSymposium Registration - The symposium is free and open to the public, with complimentary lunch for all registered participants. To register, FAX name & full contact information to (216) 368-1430. Include symposium name/date of event on the fax or call (216) 368-6619. Registration deadline: September 14, 2007. Space is limited.

CLE Registration - 7.25 hours CLE credit available to lawyers who attend
(Supreme Court of Ohio does not grant credit for a lunch speaker; that session isn’t counted in the total)
To obtain CLE credit hours, send a check for $200.00, payable to Case Western Reserve University, to “War Crimes Symposium,” Case Western Reserve University School of Law, 11075 East Blvd., Cleveland, OH 44106. Registration deadline: September 14, 2007. Space is limited.

Publication - The symposium will be published in Case Western Reserve Journal of International Law Vol. 40.  Visit the journal website for information about single issue purchase and subscriptions.

Accommodations - For your reference, the nearest hotels are: Glidden House Inn (216) 231-8900 and Intercontinental Suites Hotel & Conference Center (216) 707-4300. There is no official hotel for the symposium, however, visitor information and other area hotel listings can be found at www.cleveland.com/visit/

View comments to this article cross-posted on The Volokh Conspiracy Blog.

Comments page one

Comments page two

On the eve of the six-year anniversary of Sept. 11 and in the fourth year of the war in Iraq, what have we learned about fighting terrorism? Are we wisely spending our tax dollars? Is there “rhyme or reason” with respect to America’s counter-terrorism policy? Is there a policy?

Unfortunately, one of the results of early presidential primaries is that the candidates - many of them with legislative responsibilities - will be spending their time campaigning rather than legislating and overseeing administration policies.

Furthermore, the early primaries mean an enormously long time before the general election, which promises us vapid 20-second sound bites rather than genuine debate and discourse.

However, since the bad guys are out there, we must prepare a tough, substantive check list of questions to ask the presidential candidates in the limited time we have with them.
In answering the broad questions above, we must demand specific answers. The devil is always in the details. We are well beyond President Bush’s rightly maligned phrases: “We are winning the war on terrorism,” “Bring ‘em on” and “Mission Accomplished.” So where are we?

The answer is suggested by something I recently witnessed while standing in an airport security line. A 3-year-old boy traveling with his mother was subjected to the “blower.” The blower - an unpleasant experience for an adult - detects material required for making explosives. What does subjecting a 3-year-old to the blower unattended by a parent (his mother went through the blower previously) tell me?

It tells me that we have yet to begin risk assessment and analysis, identifying legitimate threats has not been begun and sophisticated cost-benefit analysis of counter-terrorism is apparently in its infancy. How dangerous is this? Very.

As long as 3-year-old boys are made to go through blowers at airport security lines, we clearly are not focusing our limited resources on genuine threats. Rather than develop sophisticated prototyping models, we only hear “you have been selected for a random search.”

Effective counter-terrorism can be based neither on 20-second sound bites nor subjecting young children to the blower. Minimizing the terrorist threat requires the following: dramatically improving our intelligence gathering and analysis ability (requires foreign language skills), understanding terrorist motivations and goals, developing terrorist prototypes (not ethnic-based profiling, which is both unconstitutional and ineffective) and developing sophisticated risk-assessment models facilitating cost-benefit analysis of counter-terrorism measures.

Until we develop these four measures, we will continue to subject children to blowers at the nation’s airports. Were Osama bin Laden to witness what I observed, he surely would have a good laugh. We need to wipe that smile off his face and get serious - and smart - with respect to counter-terrorism.

We have little, if any, time to waste; the dangers and threats of six years ago have been replaced by far more sophisticated terrorism. Be it cyber-terrorism or bio-terrorism, the terrorist imagination literally knows no bounds.

The determination and motivation to sacrifice for a cause drives terrorists the world over. Their motivation is matched only by their seriousness and sophistication. Measure their sophistication with ours and worry lines need to appear on our collective faces.

While politicians offer vapid generalities, the bad guys are planning the next attacks. It is not “if” but “when.” The time to address the four measures was yesterday; we can’t wait until tomorrow. Let us resolve to address them, honestly and intelligently, today. We can’t afford the inanity of subjecting 3-year-old boys to blowers at the nation’s airports.

Published in the Salt Lake Tribune, “Six years later: What have we learned?”
http://www.sltrib.com/opinion/ci_6838464

Cross posted from the National Security Advisors Blog.

Jose Padilla’s conviction for conspiracy to commit terrorist acts and provide material support to terrorists is the end of a long troubling journey in the post 9/11 criminal justice system as conceived by this Department of Justice. Upon Padilla’s arrest in 2002 at O’Hare Airport, he was held indefinitely by DOJ as a material witness and sent from the 7th Circuit to the 2nd Circuit. When a federal judge told Attorney General Ashcroft that he had misused the material witness statute and could no longer hold him, the decision was appealed. But before the appellate court could confirm that, Ashcroft relabeled Padilla an enemy combatant and he was handed from DOJ to DOD and taken down to the 4th Circuit, where successive federal courts found him properly detained. When his case was remanded by the Supreme Court for improper procedure in 2004, Padilla remained in a military brig as his case worked its way back up to the Supreme Court. However, before his case was heard by an uncertain array of justices, DOD gave Padilla back to DOJ and relabeled him a criminal. Padilla was taken down to the 11th Circuit and tried in federal court on conspiracy charges under a statute that defines conspiracy so broadly that sending someone a video on the life of Martin Luther King, Jr. can be considered providing material support to terrorists. That a U.S. citizen, no matter how bad they are, can be jerked from Illinois to New York to South Carolina to Florida before multiple courts on multiple charges, remain in solitary detention by the military for 3 1/2 years and spend part of that time without access to counsel, is mind-boggling. Are we re-writing the rules on due process? It sure would be nice to know.

The Yale Law Journal’s Pocket Part today published an essay by Colonel Morris Davis, the Chief Prosecutor in Guantanamo.

Col. Davis offers a perspective not often read in law journals and the media, and one which I believe is meritworthy.  Some of his points:

1) The detention facility has been inaccurately portrayed by critics.

2) Arguments about “indefinite trial without detention” are misplaced in a wartime context.

3) Military commissions have been historically used and are consistent with the Geneva Conventions.

4) Military commissions as constituted provide full and fair trial rights.

5) Military commissions will not exclude defendants from their trial.

6) Military commissions exclude evidence if it is derived by torture.

7) Military commissions allow the use of hearsay, but so do the ICC, the ICTY, ICTR, SCSL, Cambodia tribunal, etc.

This is just a brief summary, the article is worth checking out.

Ali Hassan al-Majid, better known in the West as “Chemical Ali”, was charged on August 8, 2007, along with fourteen others, for the massacre of Iraq’s Shi’ites in the aftermath of the 1991 Gulf War. Tens of thousands were killed in the uprising which the U.S. urged but failed to support. Iraqi High Tribunal Prosecutor Jaafar al-Moussawi announced that the trial would begin on August 21. Formal charges range from crimes against humanity to genocide. Al-Majid, Saddam Hussein’s cousin and frequent military commander of choice, was instrumental in brutally repressing post-Gulf War uprisings. There is just one snag in this process. Al-Majid may be dead within weeks of entering his plea in this trial.

On June 24, 2007, al-Majid was convicted on charges of genocide, war crimes and crimes against humanity as a key ringleader in the military reprisals known as the “Anfal Campaigns” that claimed the lives of up to 180,000 Iraqi Kurds during the waning years of the Iran-Iraq War. Al-Majid often supplemented his attacks against civilian targets and villages with chemical weapons - hence the sobriquet “Chemical Ali.” He drew the death sentence in that trial and, per Iraqi law, his case was immediately forwarded to an appellate chamber for automatic review. If confirmed by the appellate court, also per Iraqi law, his execution must be carried out within 30 days.

This same procedure played out in December, 2006, when Saddam’s death sentence in the Dujail trial for the massacre of 182 Shi’a was hurriedly and amateurishly carried out after confirmation by the appellate court. At the time of his execution, Saddam was half-way through the Anfal trial. Many observers, including myslef, argued strenouosly for Saddam’s execution to be postponed until all seven trials could be completed, or at least the Anfal trial itself; or, in the alternative, have the trial continue posthumously against him so that the record of his involvement and guilt could be established. Instead, not only was Saddam executed, but the Iraqi High Tribunal declined to continue the trial posthumously against him. Moreover, all charges against Saddam in the Anfal genocide were dropped.

Thus, Saddam got away with murder. His role in the Anfal Campaigns was not officially established through a court process, flawed as that process it. The storytelling function of a criminal trial is vitally important for the victims involved. In the case of Saddam’s legally required but premature execution, Iraq’s Kurds were denied that function. And although the Shi’a of Dujail got their day in court against Saddam, the Kurds did not. Similarly, the Shi’a of southern Iraq will not get their day in court against al-Majid in the 1991 Shi’ite Uprising trial that the Kurds got in the Anfal trial.

The best institutions learn from their mistakes. The IHT and the Iraqi government should learn from the mishandling of the Saddam proceedings. My advice to the Iraqi government and the IHT on the matter of al-Majid remains the same as it was with Saddam. Postpone al-Majid’s execution so that his role in the suppression of the Shi’ites can be fully explored with his active defense. Do not rescind it, or commute it, just postpone it. Failing that, at least let the trial against him continue posthumously. And at the very least avoid dropping the charges against him. To drop the charges is not only an insult to the survivors, but to the memory of the victims as well.