Murder, attempted murder, material support, conspiracy and spying are the charges against Omar Khadr who recently faced a military commission which heard challenges to its jurisdiction. I’ve previously blogged in detail about those charges here. As I’ve previously noted, Khadr comes from a dedicated al Qaeda family, with a family tradition of terrorism. Abdurahman Khadr, Omar’s brother boldly stated “I admit it that we are an al-Qaeda family. We had connections to al-Qaeda.” and later revealed that he had been “raised to become a suicide bomber.”
Khadr’s father Ahmad was killed in a targeted missile strike(others say in a shootout) in Pakistan. Prior to his death, Ahmad Khadr was a long time member of al Qaeda and rose to the highest levels of the al Qaeda terrorist network, commanding a region of Logar per the direct orders of Osama Bin Laden. Ahmad Khadr contributed to al Qaeda in the form of financial support and personnel assistance to further the organization’s international terrorism objectives. In particular, he encouraged his sons to join al Qaed and to carry out its work. The recently released “Book of 120 Martyrs” an al Qaeda recruiting tool states that Khadr married a Palestinian who “shared with him his march to jihad, and Allah granted them several sons who shared this long, tiresome march with him.” Omar Khadr heeded his father’s call.
Omar Khadr and his family made yearly trips to the bin Laden compound in Jalalabad Afghanistan, meeting with bin Laden, Al-Zawahiri, and other senior leaders. Khadr, not only met with senior leadership, he also attended various training camps learning the tradecraft of an international terrorist. He was trained to use rocket propelled grenades, rifles, pistols, hand grenades and explosives. He is alleged to have put his skills to use converting land mines to IED’s, planting IED’s along U.S. military routes of travel, and conducting surveillance against U.S. forces in preparation for future attacks.
In fact recently released footage shows Khadr making and emplacing an IED.
Also, footage from Iraq, gives us an idea of the other type of al Qaeda training which Khadr was likely to have gone through (Hat tip to BlackFive). That training shows children learning kidnapping and assasination, the type of conduct for which we wouldn’t hesitate to try a minor as an adult for in a domestic court.
Of course as readers know, Khadr concluded his al Qaeda tour of duty in a firefight on July 27, 2002, where he threw a grenade killing Sergeant First Class Christopher Speer of the 3rd Special Forces Group and partially blinding Sergeant First Class Layne Morris. In the firefight Khadr was shot four times by U.S. forces who then stepped over the bodies of their comrades to save his life. He was detained, provided medical treatment and sent to Guantanamo.
Khadr’s attorney’s make the argument that he was entitled to kill Sergeant Speer because Speer was a lawful target, and Khadr’s actions were not a war crime at the time he commited them. Furthemore, Defense lawyers and a UN representative have argued that if the U.S. tries Khadr, it will be a violation of the Optional Protocol to the UN Convention on the Rights of the Child, points which Colonel Davis, the former Chief Prosecutor took issue with in the comments here. Davis states:
1) The issue the protocol and lists of countries stating opposition to the recruitment of child soldiers does not speak to their conduct, it speaks to bans on recruitment.
2) Article 37(a) of the Convention on the Rights of the Child places limits on punishment, not prosecution.
3) The U.N. sanctioned Special Court for Sierra Leone’s Statue in Article 7 allowed for jurisdiction over persons 15 years of age.
Abstract:
Unlike traditional war in which soldiers fought soldiers and tanks attacked tanks, the “unseen enemy in the dark shadows of the back alleys” characterizes the post 9/11 world. Commanders are facing many challenges targeting battlefield combatants. What increasingly complicates the battlefield commanders’ dilemma in determining the status of the individual standing before him is what we describe and define in the article as “voluntary human shields”. Commanders are faced with many decision points once terrorist organizations or enemy forces introduce human shields into the equation. Battlefield commanders must determine whether the human shield is friend, foe, or innocent bystander. After making this determination, the commander then must consider the impact of potential civilian casualties or the perception that civilian casualties occurred. These decisions often have to be made by the commander on the ground with little to no time to contemplate the pros and cons of the decision.
We have chosen to address this issue for multiple reasons: commanders demand clear criteria regarding the status of those in the “zone of combat”; the innocent civilian must be protected; international law demands the soldier be trained in distinguishing between the innocent and non-innocent and the community supporting terrorist organizations must know that the truly innocent will be protected (to the greatest extent possible). The security of those individuals on the battlefield depends on the analysis of the commander. The commander must assess the security rights of the individuals on the field of battle (guided by international humanitarian law) versus the security of the soldiers he commands and the security of the state he represents. The commander needs tools to toss into his proverbial pack to take with him on the battlefield. In the article, we assert the “tools” must consist, at a minimum, of the following factors: 1) intelligence information; 2) analysis of the conduct of the specific individual; 3) battlefield circumstances at the relevant time; 4) the commanders’ prior experience; 5) the conduct of additional individuals in the surrounding area. Senior military commanders, policy and decision makers, academics, the general public and those supporting terrorists must address this issue. Otherwise, the killing of innocent civilians is as inevitable as the tragic death of a soldier unequipped to determine “who is the enemy”.
Abstract:
In response to the continued terror threat facing the United States, counterterrorism measures must be developed that are both effective and meet accountability standards. This paper approaches the issue by: (1) proposing a matrix facilitating the measurement of the effectiveness or ineffectiveness of a particular counterterrorism measure; and (2) proposing an accountability matrix for measuring the effectiveness of particular measures. The paper’s central focus is developing criteria for measuring effective counterterrorism - premised on the rule of law, policy considerations, and the limits of power. If utilized, these criteria will provide empirical evidence that particular counterterrorism measures in actuality contribute to effective and legal counterterrorism.
After the conclusion of the Saddam Hussein trial, which was perhaps the messiest trial in legal history, I was invited by Luis Moreno-Ocampo, the Prosecutor of the International Criminal Court, to make a presentation to his staff about the best ways an international criminal court can maintain control of a war crimes trial in the face of a defendant or defense counsel who seeks to disrupt the proceedings. I subsequently was invited to speak about this important issue to the judges and prosecutors of the Rwanda Tribunal and Cambodia Tribunal. The text of my presentation is available on the ICC’s website: http://www.icc-cpi.int/otp/otp_guest_lectures.html and has subsequently been published as: Michael P. Scharf, Chaos in the Courtroom: Controlling Disruptive Defendants and Contumacious Counsel in War Crimes Trials, 39 Case Western Reserve Journal of International Law 155-170 (2007).
Because of the political context and widespread publicity, former leaders on trial such as Charles Taylor, Saddam Hussein, Slobodan Milosevic, and Vojislav Seselj, are more likely than ordinary defendants to perceive that they do not stand a chance of obtaining an acquittal by playing by the rules. Instead, such individuals will often attempt to derail the proceedings, hoping for a negotiated solution such as a pardon or amnesty. They may try to hijack the trial, hoping to transform themselves through their political diatribes into heroic martyrs in the eyes of their followers. And at the same time, they may seek to discredit the tribunal, hoping to provoke the judges into inappropriately harsh responses which will make the process appear patently unfair. For this reason, major war crimes trials are often perceived as extremely messy or worse, completely out of control. When the Charles Taylor trial began last summer, there were indications that it would follow that pattern, as Taylor made inflammatory speeches, fired his lawyer, and sought to represent himself at the trial’s first session.
As Robert Jackson, the Chief Prosecutor at the Nuremberg trial, observed sixty years ago, war crimes trials, whether before international tribunals or domestic courts, seek to establish a credible historic record of abuses and elevate the rule of law over the force of might, thereby facilitating the restoration of peace and the transition to democracy. While tolerating dissent is a healthy manifestation of a democratic government, a courtroom is not an arena in which dissension, particularly of a disruptive nature, may supplant, or even take precedence over, the task of administering justice. Unlike other forms of acceptable political expression, a disruptive defendant or defense lawyer who interferes with the “grandeur of court procedure” (as Hannah Arendt once described the judicial process) threatens the proper administration of criminal justice in several fundamental ways. First, disruptive conduct renders it more difficult for the defendant and any co-defendants to obtain a fair trial. Second, it hampers the court’s ability to facilitate the testimony of victims and other witnesses. And third, it undermines the public’s confidence in and respect for the legal process.
With this in mind, the Special Court for Sierra Leone wisely held in Prosecutor v. Norman (2005) that the defendant’s right to employ disruptive tactics which seek to discredit the judicial process must give way to the tribunal’s obligation to protect “the integrity of the proceedings” and “to ensure that the administration of justice is not brought into disrepute.” Following the recipe outlined in my presentation/article, the Special Court for Sierra Leone has taken appropriate actions to make sure that the Charles Taylor trial avoids the missteps of the messy war crimes trials of the past. For example, the Tribunal has required that Taylor be represented by counsel, rather than allow him to use self-representation to turn the trial into a circus. And it has provided Taylor and his counsel detailed warnings of the incremental and calibrated Judicial responses they can expect to encounter if they engage in disruptive conduct.
Based on my impressions from watching the live feed of the Taylor trial at http://www.sc-sl.org/ it appears that the Tribunal has succeeded. Defendant Charles Taylor is behaving himself quite admirably in the courtroom, and at the same time is taking a constructive part in his own defense. He is seen constantly writing and often passing sticky notes to his lawyer, Courtenay Griffiths, who uses them during cross-examination. Taylor stands respectfully when the judges enter the courtroom, and has done nothing remotely disruptive - though his very presence is of course intimidating to witnesses who fear for their lives and are under the heaviest security imaginable. The press made a big deal that Taylor blew a kiss to his daughter sitting in the public gallery viewing to the trial on the first day, and he occasionally stares people down in the public gallery, but for the most part he seems to be quietly paying attention to what’s going on in the court.
Taylor’s new legal team has been doing an impressive job. British Barrister Courtenay Griffiths is quite tough on the witness, he grandstands from time to time, he tries to induce the witnesses into making exculpatory statements about his client, and he does his best to generate inconsistencies in their stories — basically he’s doing exactly what an outstanding defense attorney should be doing, which in turn bumps up the credibility of the entire process. The Taylor trial is animated - but within the ground rules of the court. This is a far cry from the Milosevic, Seselj and Saddam Trials, where the defendants and their counsel regularly disparaged the judges, interrupted witness testimony with outbursts, turned cross-examination into political diatribes, and staged frequent walk-outs, hunger strikes, and boycotts. It remains to be seen whether things will continue to go so well, but for now it does appear that the SCSL has learned from the lessons of the past and is setting a good precedent for the future.
Anfal Judges to Speak at Case Western on January 29, 2008
On June 24, 2007, the Iraqi High Tribunal convicted “Chemical Ali” (Ali Hassan al-Majid) and five other military leaders of Saddam Hussein’s regime of international crimes related to their roles in a three-year crackdown of northern Iraqi Kurds known as the Anfal campaign. The Tribunal’s judgment marks one of the only times in history individuals have been convicted of genocide - the worst crime known to humankind.
The Iraqi High Tribunal and the US Regime Crimes Liaison Office (RCLO) have provided Case Western Reserve University the just-completed English translation of the Anfal Trial Judgment for us to post on our award-winning Grotian Moment Website: <http://law.case.edu/grotian-moment-blog/ . This is the only place in the world where researchers can read the English translation of the historic opinion, whose 900 pages detail the legal and factual conclusions of the Tribunal. Note, at the request of RCLO all witness/victim/family names have been redacted for their safety.
The judges who presided over the Anfal trial will be making a live presentation at Case Western Reserve University School of Law at 4:00 pm on January 29, 2008. Through translators, the judges and other officers of the Iraqi High Tribunal will discuss the challenges faced, the precedent that their historic judgment set and the question of fairness in the proceedings.
This trip, which also includes stops at American University and Vanderbilt, will mark the judges’ first public appearance outside of Iraq. A transcript of the January 29 session will be posted on the “Grotian Moment” website after the event.
This program is part of the law school’s year-long series to commemorate the 60th anniversary of the Genocide Convention, which has included a day-long symposium on September 28 that featured Robert Petit, Chief Prosecutor of the Cambodian Genocide Tribunal; the October 16 Cox Center Humanitarian Award Lecture by Luis Moreno-Ocampo, Chief Prosecutor of the International Criminal Court, and the January 15 Klatsky Human Rights Lecture by Yale Law Professor W. Michael Reisman. The webcasts of those events are available for viewing on demand at: http://law.case.edu/lectures.
The law school provides research assistance to five war crimes tribunals, including the Iraqi High Tribunal, and has a special program in which students spend a semester interning at the international tribunals. Currently, third-year law student Brianne Draffin (Editor in Chief of War Crimes Prosecution Watch) is serving as a judicial clerk/intern to the judges of the Sierra Leone Tribunal who are presiding over the trial of former Liberian President Charles Taylor.
Abstract:
In discussing homeland security and terrorism, it is necessary to work with clear definitions of the terms and concepts that frame this strategy. One of the greatest hindrances to a cogent discussion of terrorism and counter-terrorism has been that the terms lack clear, universal definitions. Strategic analysis must begin with clearly articulated and precise definitions of terrorism, counter-terrorism, and homeland security, as proposed in this article.
To that extent, the recommended definition of terrorism is: acts of politically based violence aimed at innocent civilians with the intent to cause physical harm, including death, and/or conducting psychological warfare against a population aimed at intimidating it from conducting its daily life in a normal fashion.
Ultimately, there are many approaches that we could take to define terrorism. We could look at the definitions currently employed domestically and abroad. We could look to academic debate on the subject. We could consider the inverse of terrorism in other words, define first what terrorism is not. We could also try to craft a definition that encompasses all of the terrorist groups and individuals our government is currently targeting or has captured in the War on Terror.
The recommended definition captures the core elements of terrorism in clear and concise language. In reviewing scholarship and terrorists’ writings, the overwhelming impression is that causing harm (physical or psychological) to the innocent civilian population is the central characteristic of terrorist action. The available literature articulates that harming civilians is the most effective manner from the terrorist mindset¿ to effectuate their goals.
While causing death or injury to the innocent civilian population is the means to the end, I also suggest that intimidation of the population is of equal importance from the terrorist perspective. The emphasis whether resulting in death, injury, property damage, or intimidation is the attack, in whichever form, on the innocent civilian population. Accordingly, we must develop counter-terrorism policies that protect the innocent civilian population for whose protection and safety the government is responsible.
In addition, the importance of impacting daily life cannot and should not be underestimated. Terrorism is a daily grind; it must be understood in the context of daily attacks rather than one-time, dramatic-effect attacks (such as 9/11). Smaller, more frequent attacks, while perhaps less dramatic, have a much greater long-term effect on an innocent civilian population than does a one-time major event whose undeniable short-term effects may not linger. In that vein, the proposed definition emphasizes the effect on the daily life of an innocent civilian population and the commensurate requirement for the state to respond to the continuous, constant threats that represent modern-day terrorism.
This video (ten minutes long) presents a documentary short of a counter-terrorism simulation exercise I conducted in November, 2007 for students enrolled in my Global Perspectives on Counter-Terrorism class at the S.J. Quinney College of Law, University of Utah. The course is based on my casebook, Global Perspectives on Counter-terrorism (Aspen Publishers). The exercise is one of the ways we are developing intensive leadership experiences for students both within and outside the classroom.
The class participates in a half-day simulation exercise that mirrors a potential crisis happening in real time. The students play the roles of key decision-makers (US President, CIA Director, FBI Director, Secretary of State, Attorney General, Judge, Prosecutor, Secretary of Homeland Security, et al) in an effort to understand from experience the dilemmas they face and how they make critical decisions predicated on minimal intelligence information.
The students are assigned roles two weeks before the simulation and are expected to prepare for the “position” from a legal and policy perspective. However, they do not know the facts ahead of time; rather, the events unfold during the course of the simulation via “dummied” newscasts. Thanks to Utah’s extraordinary IT team, the students (divided into three locations—DC, NYC and Paris) communicate via video-conferencing (with all of its attendant problems and tensions) in an effort to provide the President with legal and policy advice relevant to their position regarding the multiple fact patterns (potential bombing of NYC port, possibility of attack against US Ambassador in Paris, and potential suicide bomber on a plane).
In the aftermath of BG Thomas Hartmann’s Congressional testimony in which he stated that information received from a detainee who had been waterboarded could be admissible, a NAVY JAG has resigned his commission in protest. It is unclear what–if any–effect LCDR Andrew Williams’s resignation will have on other JAG’s. It is also unclear what the circumstances of LCDR Williams’s resignation are.
However, in the context of the on-going debate regarding the limits of a lawful interrogation regime, LCDR Williams’s resignation should not be ignored. The question regarding the limits of interrogation of “9-11 detainees” clearly demands additional, serious debate in the public, Congress and White House.
“It was with sadness that I signed my name this grey morning to a letter resigning my commission in the U.S. Navy,” wrote Gig Harbor, Wash., resident and attorney-at-law Andrew Williams in a letter to The Peninsula Gateway last week. “There was a time when I served with pride … Sadly, no more.”
Williams’ sadness stems from the recent CIA videotape scandal in which tapes showing secret interrogations of two Al Qaeda operatives were destroyed.
The tapes may have contained evidence that the U.S. government used a type of torture known as waterboarding to obtain information from suspected terrorists.
Torture, including water-boarding, is prohibited under the treaties of the Geneva Convention.
It was in the much-publicized interview two weeks ago between Sen. Lindsey Graham (R-South Carolina) and Brig. Gen. Thomas Hartmann, who is the chief legal adviser at the Pentagon’s Office of Military Commissions, that led Williams to resign.
In the interview, Graham asked Hartmann how the uniformed legal community should respond if the Iranian government used waterboarding to torture a U.S. solider into disclosing when the next U.S. military operation would occur.
Hartmann responded: “I am not prepared to answer that question.”
For Williams, a former naval Lieutenant Commander and member of the Judge Advocate General’s Corps (JAG), this answer went against “every training I had as an attorney” and as a member of the military.
Williams enlisted in the Navy in 1991 after completing law school at Santa Clara University. He was a legal officer and defense counsel in the U.S. Navy, meaning he both prosecuted and defended people in military courts.
He served on the USS Nimitz CVN-68, based in Bremerton, before becoming a member of the Naval reserves in 1995.
Williams, 43, felt that Hartmann was admitting torture is now an acceptable interrogation technique in the United States — an admission that did not sit well with him.
“There was this saying in the Marines: ‘We don’t lie, cheat or steal, or tolerate people who do,’ ” Williams said. “And that sort of echoed through the Navy.”
Williams felt that resigning from the reserves was not enough to demonstrate his dissatisfaction. He wrote to the Gateway hoping to set an example, echoing his same reason for joining the Navy two decades ago: “It was my way of serving the public,” he said.
In his letter, Williams likened the use of torture by the United States to techniques used by the Spanish Inquisition, Nazi Germany and the Khmer Rouge. He also wrote that he hopes “the truth about torture, illegal spying on Americans and secret renditions is coming out.”
Williams doubts that much will come of his letter of resignation and acknowledges that his life in Gig Harbor — which consists of practicing personal injury law and spending time with wife and young son — will not change much.
“I suspect (the Navy is) probably going to be fine with it,” he said. “I doubt they would keep me in voluntarily.”
He also states that, although reserve officers only perform military service once a year, he “probably would have stayed on if this hadn’t happened, both for sentimental value and if something big happened where I was needed.”
Outrage over CIA scandal
Below is an excerpt from the letter Andrew Williams submitted to The Peninsula Gateway. For the entire letter, see Letters to the Editor 16A.
“Thank you General Hartmann for finally admitting the United States is now part of a long tradition of torturers going back to the Inquisition. In the middle ages the Inquisition called waterboarding “toca” and used it with great success. In colonial times, it was used by the Dutch East India Company during the Amboyna Massacre of 1623.
“Waterboarding was used by the Nazi Gestapo and the feared Japanese Kempeitai. In World War II, our grandfathers had the wisdom to convict Japanese Officer Yukio Asano of waterboarding and other torture practices in 1947 giving him 15 years hard labor. Waterboarding was practiced by the Khmer Rouge at the infamous Tuol Sleng prison. Most recently, the United States Army court martialed a soldier for the practice in 1968 during the Vietnam conflict.”
Amos and I previously blogged about the debate between Col. Davis, the former Chief Prosecutor for the Office of Military Commissions and BG Hartmann the legal advisor to the Office of Military Commissions. To access those posts click here and scroll down.
Col. Davis has now responded to BG Hartmann, here. Funny quote from Col. Davis: “In a figurative sense, I suppose I’m not the first person associated with Guantanamo to be bound and gagged before having cold water poured on him, although in my case it is intended to induce me not to talk.”
It’s interesting to see this public debate unfold, although I would have preferred to see it in the form of Congressional testimony.
I’ve posted below the video of Dan Rather’s Interview with Colonel Davis, the Former Chief Prosecutor for the Office of Military Commissions. The interview begins at the 16:00 mark (which I tried to program as the start point for the the video, but if it doesn’t work you can scroll ahead).
UPDATE: At the 32:07 mark Dan Rather goes on to interview Georgetown Prof. Neal Katyal and Wiley Rein attorney Andrew McBride regarding habeas, Hamdan, unlawful combatants, etc.
The AIDP is the oldest association of criminal law specialists in the world and one of the oldest scientific associations. This blog serves as a discussion site for all things law, with a focus upon criminal law, comparative criminal justice, international criminal law, international humanitarian law, war crimes, international criminal tribunals, human rights and counterterrorism law & policy.
who recently faced a military commission which heard challenges to its jurisdiction. I’ve previously blogged in detail about those charges here. As I’ve previously noted, Khadr comes from a dedicated al Qaeda family, with a family tradition of terrorism. Abdurahman Khadr, Omar’s brother boldly stated “I admit it that we are an al-Qaeda family. We had connections to al-Qaeda.” and later revealed that he had been “raised to become a suicide bomber.” 
er Ahmad was killed in a targeted missile strike(others say in a shootout) in Pakistan. Prior to his death, Ahmad Khadr was a long time member of al Qaeda and rose to the highest levels of the al Qaeda terrorist network, commanding a region of Logar per the direct orders of Osama Bin Laden. Ahmad Khadr contributed to al Qaeda in the form of financial support and personnel assistance to further the organization’s international terrorism objectives. In particular, he encouraged his sons to join al Qaed and to carry out its work. The recently released “Book of 120 Martyrs” an al Qaeda recruiting tool states that Khadr married a Palestinian who “shared with him his march to jihad, and Allah granted them several sons who shared this long, tiresome march with him.” Omar Khadr heeded his father’s call.
