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Roger Fitch Esq
7 May, 2010  
Our Man in Washington

Terror trial dramas … The Omar Khadr case where the crimes are unknown to the law of war … Manipulating the Military Commission system … New rule that a law of war conviction doesn’t require a law of war violation … Pentagon bans four leading reporters from Guantánamo


imageThe US had two terror-trial dramas scheduled for the last week of April. Both departed from script.

In New York, the case of Syed “Fahad” Hashmi was set for trial. Hashmi, an American citizen, was charged with material support for terrorism because he let an acquaintance store luggage in his London flat for two weeks which turned out to contain waterproof socks, ponchos and sleeping bags destined for al-Qaeda.

He even allowed that person (now a government witness) to use his phone to ring al-Qaeda.

A powerful piece about the Hashmi case by the journalist Chris Hedges appeared last year.

As a university student in Brooklyn and London, Hashmi attracted the attention of authorities through conspicuous on-campus protests against the treatment of Muslims.

His extradition from the UK was a sensation as it was the first test of Tony Blair’s one-sided speedy extradition treaty with the US.

Slate has more on Hashmi.

In New York, Hashmi was softened up by three years of rigorous pre-trial solitary confinement almost unique in American history.

Then, the federal prosecutor sought and obtained an order for an anonymous jury based on (prospective) claims of jury intimidation.

Confronted with a broad material terrorism conspiracy charge and nameless jurors, Hashmi threw in the towel and agreed to a guilty plea that could see 70 years in prison reduced to ten.

Whenever he gets out Hashmi’s unlikely to again lead campus crusades.

Andy Worthington comments.

The other April spectacle in the War on Terror took place in Guantánamo, Cuba, where Mr Obama, like his predecessor, seeks to militarise civilian offences such as terrorism support through irregular military commissions at odds with the requirements of the US constitution and US material support statutes.

imageIn the latest case, a military commission pre-trial hearing was held for the Canadian Omar Khadr (pic), charged with five “war crimes” that are variously invalid, inapplicable and/or unknown to the law of war.

One of Khadr’s crimes, material support for terrorism – invented by Congress years after the alleged acts – has been used successfully against three defendants, including David Hicks (the other two are appealing – see my last post).

Nevertheless, retrospective legislation is forbidden by the US constitution, and Congress has no power to pass such laws. The foreign citizenship and military custody of defendants and their place of trial are all irrelevant.

As in the case of David Hicks, there was no Military Commission Manual as Khadr’s trial approached.

But this time, something was cobbled together, hours before the hearing began.


The National Institute for Military Justice and other groups unsuccessfully sought to participate in the manual’s rule-making, perhaps to counter what happened last time, when the Pentagon added things to the manual that weren’t in the Act.

The previous manual imported a joint enterprise theory into the conspiracy charge in a vain attempt to make it valid, but this was struck out by a commission judge in the first round of commissions.

Now it seems the Pentagon has tried to subvert the legislation once again.

Perhaps inspired by the DC Circuit’s recent ruling that the law of war doesn’t apply to presidential acts in war (see my post of January 26), the government has inserted into the manual a rule that law of war convictions don’t require law of war violations.

The manual states that:

“An accused may be convicted in a military commission … if the commission finds that the accused engaged in conduct traditionally triable by military commission even if such conduct does not violate the international law of war.”

Say again? Catch-22 was, after all, a book about war.

imageAs for “murder” as a war crime, former Guantánamo military defence counsel David Frakt (pic) notes that in the (2006) Military Commissions Act:

“The theory underlying 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.”

According to Lt Col – now law prof – Frakt:

“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.”

The Canadians have the best reporting about Khadr’s trial, including a last minute filing in Washington and rumoured plea deals.

imageSpencer Akerman (pic) has been covering the Guantánamo trial for the Washington Independent, including the sensational development in which the Pentagon banned four reporters from Guantánamo for identifying Khadr’s Interrogator #1.

(Joshua Claus is his name and he was convicted of abuse after the death of a detainee in custody.)

Up to now, media comment has been confined to the peripheral issues of trial procedure, the purity of evidence and Khadr’s status as a 15-year old at the time he was arrested.

Preliminary matters included pleadings on the admissibility of confessions alleged to have been made under duress (e.g. to suspect interrogators such as Joshua Claus).

There was also controversy over the alteration of an interrogation report in an apparent attempt to implicate Khadr.

Soon, however, more fundamental issues must be confronted, such as the fact that “material support” has never been a war crime, and is in any case a retrospective law as applied to Khadr.

As such, it violates international law and the US constitution.

The law of war as well as self-defence would seem to make Khadr’s conviction for “murder” impossible where the person killed was a soldier and no treachery or unlawful weapon was involved.

However, the law of war does make it a war crime for soldiers to shoot a belligerent who is hors de combat.

Khadr was already gravely injured when captured, and was shot twice again – in the back.