Late Monday, on the eve of Omar Khadr's suppression hearing, the first major military commission hearing at Guantanamo since President Obama took office, the Defense Department released the new Manual for Military Commissions. The Manual is the primary implementing regulation for the Military Commissions Act of 2009, containing detailed procedural guidance, rules of evidence, and a penal code with explanations of the offenses which may be prosecuted in these military tribunals.
On the whole, the 2009 MCA is substantially fairer than the 2006 version of the law and the new Manual also contains some significant improvement over the previous version. The standards for admissibility of coerced statements and hearsay evidence, for example, now are much closer to the standards which apply in general courts-martial and federal court. There is, however, some very troubling language in the new Manual relating to the proof required to convict for certain offenses, which undermines the Obama Administration's claims of respect for the law of war and adherence to the rule of law.
On May 21, 2009, in an important national security speech at the National Archives President Obama explained his rationale for seeking to amend the MCA and keeping military commissions available as one option for trying detainees, "[D]etainees who violate the laws of war. . .are best tried through Military Commissions. Military commissions. . . are an appropriate venue for trying detainees for violations of the laws of war." As Assistant Attorney General David Kris explained to the Senate last July, "The President has made clear that military commissions are to be used only to prosecute law of war offenses."
What President Obama may not have realized, or at least neglected to mention in his speech, is that very few detainees are actually suspected of violating the laws of war. Last summer, I was invited to testify before a Congressional Subcommittee considering proposals to reform the military commissions and I tried to explain this point: "The Obama administration has talked about military commissions being a suitable forum for law of war offenses, and I agree with that. They are a legitimate forum for law of war offenses. But what gets left out of the debate is that there are virtually no law of war offenses to be tried." While I encouraged Congress to limit military commissions to true war crimes, I warned the lawmakers that if reformed military commissions "are limited to law of war offenses. . .there is not going to be anybody to try."
Unfortunately, in enacting the Military Commissions Act of 2009, Congress did not strictly limit the jurisdiction of the military commissions to law of war violations and included non-war crimes like "Providing Material Support to Terrorism," a crime which even the Justice Department was forced to admit was not a traditional law of war offense. The Secretary of Defense, in publishing the new Manual for Military Commissions, has done Congress one better, attempting by regulation to broaden the scope of a real war crime to include conduct that does not violate the law of war in order to ensure convictions where they would otherwise be doubtful. In so doing, Secretary Gates has subverted the will of Congress and undermined the President's law of war justification for military commissions.
Under a 2003 DoD Instruction defining the crimes eligible for trial by the military commissions created by executive order of President Bush, the President attempted to create a new war offense called "murder by an unprivileged belligerent."
The theory underling this offense was that any attempt to fight Americans or coalition forces was a war crime. This status-based definition conflated two different concepts - unprivileged belligerents and war criminals. Under Article 4 of the Geneva Prisoner of War Convention it is clear that while a member of an organized resistance movement or militia may be an unprivileged belligerent (because of not wearing a uniform or failing to carry arms openly, for example) he may still comply with the laws and customs of war, so not all hostile acts committed by unprivileged belligerents are war crimes. Attacks by unprivileged belligerents which comply with the law of war (in that they attack lawful military targets with lawful weapons) may only be tried in domestic courts. In Iraq, for example, insurgents who try to kill Americans by implanting roadside bombs are properly arrested and tried before the Central Criminal Court of Iraq as common criminals. Attacks by unprivileged belligerents which violate the law of war, such as attacks on civilians or soldiers attempting to surrender, or using prohibited weapons like poison gas, can be tried in a war crimes tribunal.
In the 2006 MCA, Congress rejected the status-based crime of Murder by an Unprivileged Belligerent, replacing it with the related, but more narrowly defined, "Murder in Violation of the Law of War." The statute made it plain, as the name implies, that this offense applied only to killings that violated the law of war. Despite this clear distinction, military commission prosecutors argued in three separate cases convened under the 2006 law that "Murder in Violation of the Law of War" really was just "Murder by an Unprivileged Belligerent" by another name, explicitly claiming that the mere status of a person as an unlawful combatant rendered any hostile acts committed by him violations of the law of war. Three separate military judges in three commissions (Salim Hamdan, Mohammed Jawad and Ali al Bahlul) rejected the government's argument, each ruling that the mere status of unprivileged belligerency was insufficient to prove a violation of the law of war. (I was the lead defense counsel in both the Jawad and al Bahlul cases). Congress was well aware of these rulings when it enacted the 2009 MCA -- I specifically mentioned them in my testimony -- but left the definition of "Murder in Violation of the Law of War" unchanged, reflecting their comfort with these judges' interpretation of the crime.
Now, the Department of Defense has once again attempted to revive this discredited interpretation of the offense with a slight twist. In the new Manual the following official comment has been included in explanation of the offense of Murder in Violation of the Law of War: "an accused may be convicted in a military commission. . . if the commission finds that the accused engaged in conduct traditionally triable by military commission (e.g., spying; murder committed while the accused did not meet the requirements of privileged belligerency) even if such conduct does not violate the international law of war." Astoundingly, according to the Pentagon, a detainee may be convicted of murder in violation of the law of war even if they did not actually violate the law of war. It is gratifying that DoD has finally acknowledged officially that status as an unprivileged belligerent --"merely failing to meet the requirements of privileged belligerency" -- does not equate to a violation of the law of war, an argument that I made repeatedly before the commissions and in my congressional testimony. But it is deeply troubling that DoD has nevertheless opined that a non-law of war violation can still constitute murder in violation of the law of war. The commentary also directly contradicts the elements of the offense which specifically include a requirement that the prosecution prove beyond a reasonable doubt that the killing was in violation of the law of war. Although comments in a regulation do not have the force of law, the inclusion of this commentary is clearly intended to send a message to the military commission judges that they are not to let the law of war get in the way of a conviction.
It is no coincidence that this provision was published on the eve of the recommencement of the Omar Khadr commission. Khadr, a Canadian who was just 15 when he was captured in 2002, is charged with murder in violation of the law of war. Khadr allegedly threw a hand grenade which killed a U.S. soldier, but there is no evidence that he violated the law of war in doing so and in court filings the prosecution has admitted to relying solely on his status as an unprivileged belligerent to prove this element of the offense.
The absurdity of claiming that no actual violation of the law of war is required to commit murder in violation of the law of war severely undermines the Administration's claims of commitment to adherence to the rule of law and their pledge to use military commissions only to prosecute law of war offenses. The Administration's alleged devotion to transparency was also undercut by the release of the new manual. The DoD rejected the plea of the National Institute for Military Justice and other civil liberties groups for a public comment period on the draft manual and chose to publish the document as a final product. The obvious contradiction between the legislative intent and the Pentagon's interpretation of this offense demonstrates precisely why a public comment period was needed.
The Administration's decision to press forward with the first war crimes trial of a child soldier in modern history is unfathomable. That the Administration would then try to ensure a conviction by attempting to rewrite the law to create a new war crime is reprehensible.
David Frakt is Associate Professor of Law at Western State University College of Law and a Lieutenant Colonel in the U.S. Air Force Reserve JAG Corps. He previously served as lead defense counsel with the Office of Military Commissions. His views are his own and do not reflect the views of the Air Force or the Department of Defense.