Squabble in Administration over Rule of War, Khadr, Drones

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Steven Edwards, one of the four journalists banned from Gitmo for reporting publicly available information, has an important story on squabbles within the Obama Administration about what should be in the recently updated Gitmo military tribunal manual. At issue is whether actions like Khadr’s alleged crime–throwing a grenade during active warfare–should be included.

The officials sought to strip a new commissions manual of a law-of-war murder definition that is central to Khadr’s prosecution in the mortal wounding of Special Forces Sgt. First Class Chris Speer during a 2002 firefight in Afghanistan, insiders say.

Omission of the segment could have also obliged prosecutors to trim or abandon “up to one-third” of its cases, according to one inside estimate.

In a turf battle familiar from the Bush Administration, the dispute pits State–Harold Koh–against DOD–General Counsel Jeh Johnson.

U.S. Defence Secretary Robert Gates signed off on the manual with the contested “comment” intact after Jeh Johnson, his legal adviser, went head-to-head with Koh, one official recounted.

“Harold Koh doesn’t have any authority over the defence department,” said this official. “The general counsel of DOD was fighting Koh on it; he advises Secretary Gates . . . who is going to follow his own lawyer.”

Of particular interest, Koh appears to have shared the concerns laid out here–that if we treated Khadr’s alleged attack as a war crimes violation, it would put our own use of drones in the same category (though I imagine it is in that category in any case).

Along with Koh, two OLC attorneys opposed the inclusion of murder in the manual. From the sounds of things, others in the Obama Administration overrode these two OLC attorneys. Which I guess is a lot easier to do when there’s no Assistant Attorney General at OLC to champion such battles. One more benefit to the unilateralists of scotching Dawn Johnsen’s nomination, I guess. But it does raise questions about whether OLC under Obama has gotten even more politicized than under Bush?

One more note before I send you off to read the whole thing. This article doesn’t mention Daniel Meltzer, the Deputy White House Counsel who resigned earlier this month to spend more time with his law students. But the timing of it would certainly line up.

Updated: Corrected reference to specific OLC lawyers–my post went beyond what Edwards wrote in his story.

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27 replies
  3. Jeff Kaye says:

    …questions about whether OLC under Obama has gotten even more politicized than under Bush?

    I’d say this was foreordained when Obama decided to shift executive fiat from the hated Bush policy of issuing tons of presidential signing statements to making policy through secret OLC memos. Per David Swanson (though I’d say I’ve heard this first from some academics who study presidential power):

    Having denounced for years the presidential practice of altering laws with signing statements, I now want the practice restored, because the current president has created something even worse.

    When Bush and Cheney left the White House, they left in place five general ways to make laws: instruct Congress what to do, rewrite what Congress does with a signing statement, by-pass Congress with an executive order (or executive decree, or unratified treaty), by-pass everybody with a secret memo from the Office of Legal Counsel (OLC), and simply create illegal practices without any justification.

    • DWBartoo says:

      What doth constitute “treason”, now that Caesar is a god, Jeff?

      To the “squabble”;

      ” … law-of-war murder definition”.

      This does pose a semantic problem.

      Basic human morality having nothing to do with it.

      One trusts, that with the right legal assistance, “they” will parse “their” way out of this.

      After experimenting with human beings, torturing the language poses no insurmountable “problem”, for those who would rule.

      DW

    • bmaz says:

      Yeah, I dunno. I am pretty uncomfortable with this gross generalization from Swanson; it is rather unsophisticated and misleading.

      • Jeff Kaye says:

        From Charlie Savage:

        Legal scholars said the administration’s new approach, which avoids repeating claims of executive power that the White House has previously voiced, could avoid setting off fights with lawmakers. But the approach will make it harder to keep track of which statutes the White House believes it can disregard, or to compare the number of laws challenged by President Obama with former President George W. Bush’s record….

        When Mr. Bush signed one such bill, he issued a signing statement instructing officials to view the law as merely advisory, and they attended at least one such meeting on his watch. By contrast, when Mr. Obama signed another bill with an identical provision, he did not specifically single it out for challenge. But his administration later obtained an Office of Legal Counsel opinion pronouncing it unconstitutional, and officials continued to attend such meetings.

        Unlike signing statements, opinions from the Office of Legal Counsel are often secret. Mr. [Jack] Goldsmith said the administration’s approach of issuing fewer signing statements would mean “somewhat less accountability.”

        Yeah, that Jack Goldsmith.

        The GOP had a mini-field day with this, accusing Obama of hypocrisy (and this from experts in hypocrisy). But it is still true that the Obama administration is obfuscating their challenges to legislation. For instance, I’ve been told they made a rule change making signing statements exempt from the Weekly Compilation of Presidential Documents (which had previously been the standard since 1965).

        See this essay from Christopher Kelley’s blog (Kelly being a major scholar in the field of presidential signing statements).

        • DWBartoo says:

          Thank you, Jeff, for the link to the essay.

          The question of “standing” continues to loom, as it has from the very beginning of our legal system.

          An interesting history is recounted in that essay.

          DW

        • timbo says:

          The lack of a strong Congress and lack of special prosecutors investigating and lack of judges applying the laws on the books, particularly in the Bill of Rights, etc to the behaviors of the rulers in Washington is what’s ruining the legal society here.

        • bobschacht says:

          Yeah– Unfortunately, the Constitution is not a self-executing document. It takes a special breed of people, called citizens, to keep it.

          As Pogo said in days of yore, we have met the enemy, and they are us (i.e., We, the People).

          Bob in AZ

  4. harpie says:

    Thanks for bringing this to our attention, EW. Looks like another round of DOD vs DOS. OY!

  5. fatster says:

    What harpie said @ 4 and @ 5, with a bit of underlining and smattering of exclamation points.

  6. skdadl says:

    Key among the contested phrasing is a statement that says murder and some other offences rise to the level of war crimes if committed “while the accused did not meet the requirements of privileged belligerency” — which principally covers regular war law-abiding combatants.

    “Privileged belligerency” — oh, look: another new expression. I think that you are automatically a privileged belligerent if you are wearing a U.S. gov-issue uniform, and after that, the U.S. gov is privileged to decide what you are, especially if they find you belligerent.

    Forgive my anger, but in the context of a legal process where one of the prosecution witnesses referred to one of the national costumes of Afghanistan as “man jammies,” I’m stuck with repeating that these commissions are a disastrous contribution to international law and are going to be reviled in the history books.

        • DWBartoo says:

          And, skdadl, we mustn’t forget Cass Sunstein’s plan for an “Official History”, the “facts” of which may not, lightly, be challenged.

          Looks like “they” figure they’ve all the angles “covered” …

          Yet history suggests that, even the best laid “plans” …

          DW

  7. lysias says:

    Glenn Greenwald made this point months ago, that, if what Khadr did is a war crime, we’re committing multiple war crimes with our drones.

    • skdadl says:

      if what Khadr did

      There is significant doubt that he “did” anything, but even that is a consideration or two down the list.

    • emptywheel says:

      Yup. As I pointed out, so did I in a discussion of drones.

      What is new here is that Harold Koh was trying to make the argument internally, but apparently failed.

  8. bobschacht says:

    I think that there’s a major power struggle that Obama is facing in his administration and in the military that is coming to a head over the ill-conceived war in Afghanistan. Obama already had a showdown with the Pentagon because he didn’t give McCrystal everything he wanted. Now the indications are that the Afghan strategy in Kandahar– and even Marjah– is not working. Obama is facing a fish-or-cut-bait moment, and now this business with Cheney & Petraus– all while the oil volcano in the Gulf of Mexico is demanding his attention, which he is being accused of neglecting.

    We can’t afford two wars (let alone 3) in the Middle East. Obama can’t afford an escalation as 2012 approaches.

    He’s got some major issues to deal with.

    Bob in AZ

    • klynn says:

      bobschacht, I agree with you about the depth of a power struggle.

      EW, keep on this story. This is a major concern.

  11. harpie says:

    The Khadr Boomerang; Scott Horton; 5/25/10

    […] The Obama Administration owes the country a clear explanation of its legal policy positions with respect to law-of-war issues. What it has served up instead is a series of half-baked and unresolved controversies that undermine confidence in the military justice system. Common Article 3 of the Geneva Conventions, which the Supreme Court has held to be binding on the military commissions, says they must be a “regularly constituted court.” But at every turn, the Pentagon has taken shortcuts that compromise the credibility of these tribunals.

  12. powwow says:

    According to this official, it was feared that aspects of the commission manual’s “comment” in the section titled Murder in Violation of the Law of War could be applied to the attacks. Key among the contested phrasing is a statement that says murder and some other offences rise to the level of war crimes if committed “while the accused did not meet the requirements of privileged belligerency” — which principally covers regular war law-abiding combatants. – Steven Edwards

    As I was just reminded by this comment from pete b in a Glenn Greenwald post thread from yesterday, David Frakt’s recent article at HuffingtonPost, written just after the new Military Commissions Manual was issued (on the eve of the latest Khadr pre-trial hearing) directly addressed this very matter – which is a very consequential matter, indeed, with respect to how the law of armed conflict is interpreted and applied.

    [So someone other than Lindsey Graham, using his practiced subterfuge, damn well better be raising these issues with Elena Kagan at her nomination hearing. Meaning, in particular, Democratic members of the Senate Judiciary Committee, who presently seem inclined to act as nothing but closed-minded partisans of the Democratic Party afraid to displease the man atop the Executive Branch, rather than as federal legislators in a separate branch of government working to safeguard the vital independence of our federal judiciary, or as representatives of the people of their states.]

    Frakt’s is the voice of experience here, and he explains with great clarity what Jeh Johnson, Robert Gates, Barack Obama, and those siding with them against the Departments of State and Justice’s wise counsel, have just endorsed in trying to reinterpret (for the revised commission rules manual) the 2009 Military Commissions Act offense entitled “Murder in Violation of the Law of War”:

    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 [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. 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 [of the territory where the attacks took place, assuming they violate domestic law]. 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 United States or elsewhere].

    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 [including in two of the only three cases yet to have reached a verdict or plea bargain in the MCA-governed military commissions] 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.”

    […]

    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.

    – David Frakt, Lt. Col., USAF Reserve JAG Corps, 4/29/2010

    QUESTION [that some reporter really, really should try to ask Johnson/Gates/Obama, and/or Members of Congress on the Armed Services Committees, on the record]:

    If “Murder in Violation of the Law of War” – as prosecuted by the Pentagon in its Guantanamo Military Commissions – doesn’t “violate the international law of war” per the Department of Defense’s own description of the offense, in its latest military commissions manual, then what “law of war,” exactly, does such murder “violate”??

    Jeh Johnson has already lost this argument, where it matters most at the moment: In the Military Commissions, overseen by military judges. And he damn well knows it. Again, quoting Frakt:

    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.

    To which Jeh Johnson and the Pentagon – the judicially-unchecked and Congressionally-unchecked convenor of the sordid Guantanamo Military Commissions – now respond:

    ”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.”

    Which must mean that this added comment, to cover the continuation of untenable prosecutions until some indefinite future date, was a political decision, intended to kick the can and the heat yet further down the road, to spare Barack Obama’s overly-sensitive political self-image, and to prevent the need to respond to more Muslim-demonizing, lawless arguments from partisan hacks in Congress. [Note that the controversial Johnson comment poses more problems for our unprivileged-combatant CIA drone operators, than would have been the case if the Pentagon rules manual adhered to the actual legislative language, which requires something more than “unpriviliged belligerency” alone to subject someone to prosecution for war crimes.]

    What a travesty that the indefensible Jeh Johnson argument won out in this administration, with such clear and compelling evidence now on the public record that his argument is flat wrong, as a matter of both military law and justice.

    [For more on how the status of an unprivileged belligerent interacts with the law of war, see this Frakt defense motion PDF. For a reminder about the crucial, abuse-precipitating, disgracefully-overlooked fact that the “status” of our “War on Terror” (AUMF-generated) detainees has never been lawfully established in accordance with the Geneva Conventions, which are the law of the land in the United States, see my comment here, and especially the pertinent Army Regulation PDF here.]

  13. ondelette says:

    The MCA of 2009 defines two “in violation of the law of war” crimes:

    ‘‘(15) MURDER IN VIOLATION OF THE LAW OF WAR.—Any person subject to this chapter who intentionally kills one or more persons, including privileged belligerents, in violation of the law of war shall be punished by death or such other punishment as a military commission under this chapter may
    direct.
    ‘‘(16) DESTRUCTION OF PROPERTY IN VIOLATION OF THE LAW OF WAR.—Any person subject to this chapter who intentionally destroys property belonging to another person in violation of the law of war shall punished as a military commission under this chapter may direct.

    Persons “subject to this chapter” are “alien unprivileged enemy belligerents”, defined as,

    ‘‘(6) PRIVILEGED BELLIGERENT.—The term ‘privileged belligerent’ means an individual belonging to one of the eight categories enumerated in Article 4 of the Geneva Convention Relative to the Treatment of Prisoners of War.
    ‘‘(7) UNPRIVILEGED ENEMY BELLIGERENT.—The term ‘unprivileged enemy belligerent’ means an individual (other than a privileged belligerent) who—
    ‘‘(A) has engaged in hostilities against the United States or its coalition partners;
    ‘‘(B) has purposefully and materially supported hostilities against the United States or its coalition partners;
    or
    ‘‘(C) was a part of al Qaeda at the time of the alleged offense under this chapter.

    There is a such thing as murder amounting to a war crime, since murder is a grave breach of the Geneva Conventions (it’s listed in all of them) and of Additional Protocol I. It isn’t being unprivileged and killing someone, though. It’s murdering a protected person. Like killing Diliwar, for instance, or perhaps shooting and killing a guy in a van who is rendering aid to a wounded person. Or something like that.

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