In the USA, the Administration appears determined to continue charging alleged terrorists with non-existent crimes, even though President Bush has given way to President Obama. Moving Guantanamo prisoner trials to Manhattan Island, NY, won’t turn charges that don’t exist in law into legal prosecutions, writes Robert Briggs.
Vigilante Law?
By Robert Briggs*
US President Barack Obama seems intent on maintaining many of George Bush’s extra-legal initiatives – even blunders and follies – and making them permanent features of American life, remodelling the US Constitution along the way.
The use of military courts for civil offences such as terrorist crimes is perhaps the most egregious of these.
In criminal cases, the principal law office of the US remains addicted to solutions which, frankly, are unconstitutional, or violate treaties. Or perhaps Mr Obama’s Attorney General, Eric Holder, supports military courts for civilian offences as a bargaining chip to secure plea agreements from men who cannot be tried in civil courts because of mistreatment or coerced confessions.
Many people complain about trying the 9/11 defendants in Manhattan, a logical place to bring the case, but few have commented on the announcement – made at the same time – that military commissions will be held for other defendants whose cases have equal claims to civil trials.
True, their “crimes” occurred outside the US, but that in itself confers no military jurisdiction. The “9/ll” defendants are charged with a conspiracy hatched overseas, and so also are several military commission defendants. Conspiracy, however, is not a recognised war crime, though it is a valid civil crime.
Nevertheless, it seems Obama’s lawyers will keep and use essential elements of substantive law in the Bush military commissions, undeterred by the fact that there seems little support under the law of war for the trials that are intended.
One example is charging Omar Khadr with “murder” for allegedly throwing a grenade at uniformed soldiers, an unfortunate but normal incident of war. Murder (without treachery or a prohibited weapon), like “conspiracy”, “material support” and “terrorism” isn’t a war crime under the Geneva Conventions.
That’s a problem since the Conventions are part of American law. It appears, however, that Mr Obama is prepared to accept laws of war unilaterally redesigned and tailored to obtain convictions. Perhaps he believes only this will satisfy his political opponents and a public ignorant of the actual requirements of international and US law.
Thus the US Attorney General has announced that Abd al Rahim al-Nashiri, the man accused of bombing the USS Cole in Yemen in 2000 – a man the government admits it water-tortured – is still to be tried by military commission.
This is very troubling, as al-Nashiri’s alleged crimes fail to meet the criteria for military trial set out by the US Supreme Court plurality in Hamdan v Rumsfeld. The offences took place outside a theatre of war, and they occurred before there was a war. There was no attack on a civilian target. And some of the charges, as noted, are not valid war crimes.
Al-Nashiri should be tried in the US, like Ahmed Ghailani, the Guantánamo detainee charged with bombing the US embassies in Africa in 1998.
In his press conference announcing the decision on where the trials would be held, the AG, Eric Holder, showed his own legal confusion:
QUESTION: So all five — just to follow, all five of the ones that are going to military commissions that were decided today, is that because those were military targets, like the Cole, and the 9/11 attacks were primarily civilian targets? Is that the defining characteristic there?
HOLDER: Well, there are a variety of factors that go into it.
Certainly, with regard to the Cole bombing, that was an attack on a United States warship, and that, I think, is appropriately placed into the military commission setting. At least one of the others involves an attack on one of our soldiers. (my emphasis)
Say again? Surely the Attorney General knows that a military attack that does not in some way violate the laws of war (as in the use of treachery or a prohibited weapon) will not qualify as a war crime triable by a military commission.
According to the former military defender in several high-profile military commissions, David Frakt http://www.salon.com/opinion/feature/2009/08/04/military_commissions/index.html, perfidy is the only offence charged in any of the commissions (it is charged against al-Nashiri) that is a valid war crime, or would be, if al-Nashiri had committed it in a war.
At least, it seems the military commissions will be held in the US. That should put beyond doubt the application of the US Constitution to the commission defendants, who will have many sound arguments to present questioning the jurisdiction – eg, the offences are not war crimes, did not happen during a war or in a war theatre and were created ex post facto.
ENDS
Robert Briggs is a CLA member and a lawyer (US and Australia) who keeps watch on developments in the US, especially on the promised – and realized – transition
of the legal and justice systems from the Bush to the Obama Administrations.