Friday, September 17, 2010

From Roger Fitch and our friends down under at Justinian

Law of war is a moveable feast

Monday, September 13, 2010
Justinian in Law of war, Roger Fitch Esq

State Department reports to UN on human rights in the USA ... Surprisingly few US civilians killed overseas by terrorists last year ... Of all the defendants before Military Commissions, only one has been charged with an actual war crime

In January, an appellate panel of the DC Circuit ruled 2-1 (in the Guantánamo habeas case of Al Bihani) that the president is not constrained by the international law of war, a Bush claim that Obama disowned.

The majority judges in that panel were Janice Rogers Brown and Brett Kavanaugh, perhaps the most extreme of George Bush's dismal appellate appointees.

A full bench of the circuit has now denied a rehearing to Al Bihani. While the decision was unanimous, seven of nine judges disclaimed the lower court's dicta on international law.

U Texas law prof Robert Chesney sorts the 113-page decision, which has extensive opinions from the original panel's judges.

American University law prof Steve Vladeck sees it as a real improvement on the original decision.

The dissident judges were unrepentant, and Kavanaugh wrote 87 pages in which he continued his claim that Congress must expressly refer to international law for it to apply.

It's a position at odds with repeated Supreme Court decisions on Guantánamo.

Scotusblog has more.

* * *

This column usually tracks actions of the US government that challenge international humanitarian law (IHL), the law of war, as demonstrated by the highly questionable detentions and trials at Guantánamo.

In the area of international human rights (HR), however, the US has a better record.

Thirty-three years ago, Jimmy Carter began an emphasis on HR that led to annual reports by the US State Department on countries around the world - but not the US.

Now, State has produced a report to the UN that examines human rights in the US as well.

Human Rights First has more.

Perhaps the report should have covered the activities of Americans in strife overseas for human rights violations but these (and the due-process-free foreign acts of the US government) are not included.

* * *

The State Department also released an annual report, by country, on terrorism. It reveals that in 2009 a total of nine American "private citizens" were killed by terrorism overseas (14 were injured). The terrorism definition used ("premeditated, politically motivated violence perpetrated against non-combatant targets") excluded attacks on US military personnel.

That's interesting, given that the Canadian Omar Khadr is being tried in a military commission for the "terrorist crime" of killing a US soldier in battle.

Perhaps it's one reason the Obama administration is having second thoughts about Khadr's trial. After all, "legal experts" continue to maintain that the commissions are illegal.

Prof Vladeck is one of them, with a new law review article, The Laws of War as a Constitutional Limit on Military Jurisdiction, describing the invalidity of prosecutions for faux war crimes at Guantánamo.

Loyola Law School's David Glazier has also weighed in, noting that "the law of war does not proscribe the routine killing of combatants, even by those with no right to participate in hostilities".

Glazier quotes from The Conduct of Hostilities Under the Law of Armed Conflict (2004):

"With unlawful combatants, [the law of armed conflict] refrains from stigmatizing the acts as criminal. It merely takes off a mantle of immunity from the defendant, who is thereby accessible to penal charges for any offense committed against the domestic legal system."

The article says that, by trying Khadr for unknown or invalid crimes, the US may itself be committing a war crime. According to Glazier:

"The perverse irony is that the only 'war crime' present in Khadr's Guantánamo courtroom appears to be denial of a fair trial, and the perpetrator is the government, not the defendant."

And it doesn't stop there:

"Incredibly, testimony at Khadr's aborted first trial sessions indicated that an armed CIA officer in civilian clothes - an unprivileged belligerent - was among the American participants at the firefight in which [the American soldier] Speer was fatally wounded."

Nevertheless, the Khadr case continues.

As I noted in my last post, the Pentagon-selected judge doesn't think Omar Khadr was tortured, though the facts are remarkably similar to those in Mohammed Jawad's case, and Jawad's confessions were found to be forced.

Judge Patrick Parrish's rulings on the defence suppression motions have now been released. The Miami Herald has more.

The judge never bothered to address the cruel, inhumane and degrading side of Khadr's ordeal other than finding there had been no "mistreatment", yet one of the supposed benefits of the 2009 amendments to the Military Commission Act was its exclusion of coerced, not just tortured, testimony.

Khadr's motion to suppress confessions might well have succeeded had he drawn Jawad's judge, Col. Stephen Henley, rather than Col. Parrish.

* * *

The US is also backtracking on the military trial of Abd al-Rahim al-Nashiri, the USS Cole bomber.

Nashiri was formerly a guest of the CIA in Poland, where he was entertained with water boards and electric drills.

Though not currently charged, he has been identified as the only military commissions defendant ever charged with an offence that is actually a war crime - treacherously attacking a military target.

The only problem? The bombing occurred in Yemen in 2000, when and where there was no war.

As it happens, Yemen tried Nashiri for these offences in absentia, in 2004, and sentenced him to death.

The US could simply deport him, but there's a bloodlust among the ship's commander and the families of victims, and it must be sated through American proceedings.

* * *

Adding to the legal controversy around military commissions is the unexpected announcement that the Court of Military Commission Review has opted for a full bench consideration of the appeal of Salim Hamdan, the now-released Guantánamero convicted of "material support for terrorism". The appeal was heard in January.

The docket is here.

* * *

Another unfortunate appointment to the bench, Jay Bybee, has made the news again.

The 9th Circuit judge and water torture enthusiast has written an opinion explaining when a person can - and can't - have water.

Hint: you can't have it when you need it.

David Luban and Emptywheel comment.

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