A Critical Assessment of The Military Commission Charges Against Omar Khadr

Legal Studies Paper No.
2010-37
A COURT WITHOUT
JURISDICTION:
A CRITICAL ASSESSMENT OF THE
MILITARY COMMISSION CHARGES
AGAINST OMAR KHADR
Professor David Glazier
Electronic copy available at: http://ssrn.com/abstract=1669946

2 A Court Without Jurisdiction [August 31, 2010]
A COURT WITHOUT JURISDICTION: A CRITICAL ASSESSMENT OF

THE MILITARY COMMISSION CHARGES AGAINST OMAR KHADR
David Glazier*
INTRODUCTION
Twenty-three year-old Canadian citizen Omar Khadr has been one of

the most controversial Guantánamo military commission defendants since
charges against him were first announced on November 7, 2005.1 The scion
of a radical Muslim family receiving little sympathy from his North
American countrymen,2 Khadr is said to have received weapons training
from al Qaeda, to have spied on U.S. forces in Afghanistan, participated in
the fabrication and planting of improvised explosive devices, and to have
killed an attacking U.S. soldier with a hand grenade.3 In his defense,
questions have been raised about the accuracy of the underlying facts,4
about admissions extracted through mistreatment including reported threats
of rape and actual physical abuse,5 and about the legitimacy of trying an
individual for war crimes based on acts committed at the age of fifteen.6
Far less public attention has been given to the issue of whether the
specific charges levied against Khadr describe violations of the law of war
which can legitimately be tried by a military commission. The analysis that
follows will suggest that none of the five charges as actually lodged
describe criminal violations of the law of armed conflict (LOAC), even if
the underlying factual predicates are all true. A military commission based
on the law of war thus lacks subject matter jurisdiction to hear the case. If
*
Professor of Law and Lloyd Tevis Fellow, Loyola Law School Los Angeles.
1
Press Release, Dep‘t of Def., Military Commission Charges Approved (Nov. 7,
2005), available at http://www.defenselink.mil/releases/release.aspx?releaseid=9052
2
MICHELLE SHEPHARD, GUANTÁNAMO‘S CHILD at ix-xiv (2007).
3
See Office of Military Commissions, Referred Charges, Apr. 24, 2007 available at
http://www.defense.gov/news/Apr2007/Khadrreferral.pdf.
4
See, e.g., New Witness Account Shows Khadr Charges Should be Dropped:Lawyers,
CBC NEWS Feb. 5, 2008 at http://www.cbc.ca/world/story/2008/02/05/khadr-
account.html?ref=rss.
5
See, e.g., Lisa Hajjar, Travesty in Progress: Omar Khadr and the US Military
Commissions, Middle East Report Online, July 26, 2010,
http://www.merip.org/mero/mero072610.html
6
See, e.g., Judge: Gitmo Jury can Consider Age of 'Child Soldier', REUTERS, Aug. 10,
2010 available at http://www.msnbc.msn.com/id/38643699/ns/us_news-security/; Charlie
Savage, U.S. Wary Over Example of First Military Tribunal Case, N.Y. TIMES, Aug. 27,
2010 available at http://www.nytimes.com/2010/08/28/us/28gitmo.html?_r=1.

A Critical Assessment of the Charges Against Omar Khadr 3
the United States desires to lawfully punish Khadr for his role in al Qaeda
operations, it must do so through the application of domestic criminal law in
a trial in a regular U.S. federal court or before a national Afghan tribunal of
competent jurisdiction.
I. THE LEGAL BASIS FOR MILITARY COMMISSION JURISDICTION
Congress formally sanctioned treating the 9/11 attacks as an act of war

when it enacted the Authorization for the Use of Military Force (AUMF)7
on September 18, 2001. As matter of national law, this permitted the U.S.
government to depart from treating terrorism under the criminal law
paradigm and resort to the direct application of lethal force under the
LOAC. It also allowed invocation of what the Supreme Court called the
―fundamental incidents‖ of waging war, including authority for the
preventive detention of enemy fighters and war crimes prosecution.8
The Uniform Code of Military Justice (UCMJ) expressly allows courts-
martial to try LOAC violations9 and many potential war crimes are also
defined as ordinary federal offenses under the War Crimes Act of 1996.10
Rather than relying on these established tribunals, however, President Bush
elected to authorize military commission prosecutions of suspected
terrorists even though these common law military courts had not been used
in a half-century.11 The initial authority for these trials took the form of a
unilateral November 2001 presidential order bolstered by supporting
directives issued by the Department of Defense (DOD), the Office of
Military Commissions established within DOD, and the senior trial
presiding officer.12 After the Supreme Court rejected key elements of this
approach in its 2006 Hamdan v. Rumsfeld decision, holding that the
irregular nature of the initial Bush commissions failed to comply with either
the mandates of the UCMJ or the LOAC,13 the administration went to
7
Authorization for Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224 (2001)
(codified at 50 U.S.C. § 1541 note (Supp. III 2003) (hereinafter ―AUMF‖).
8
Hamdi v. Rumsfeld, 542 U.S. 507, 518-19 (2004) (finding authorization for
detention); Hamdan v. Rumsfeld, 548 U.S. 557, 593-94 (2006) (finding general
authorization for military trials, but not the flawed tribunals initially established).
9
10 U.S.C. § 818.
10
18 U.S.C. § 2441.
11
See David Glazier, Precedents Lost: The Neglected History of the Military
Commission, 46 VA. J. INT‘L L. 5 (2005) (detailing the overall history of the military
commission and their resurrection after 50 years of dormancy).
12
For the overall history of the Bush commission process and discussion of the
governing directives, see David Glazier, A Self-Inflicted Wound: A Half-Dozen Years of
Turmoil Over the Guantanamo Military Commissions, 12 LEWIS & CLARK L. REV. 131,
147-74 (2008)
13
548 U.S. 557 (2006).

Congress and secured statutory authorization for the Guantánamo trials in

the Military Commissions Act of 2006.14 Congress passed an updated
version of this statute, known as the Military Commissions Act of 2009
(MCA),15 following the Obama administration‘s mid-2009 decision to
continue to employ these tribunals.
The MCA adds a supplemental Chapter 47A to Chapter 10 of the United
States Code immediately after the existing UCMJ which regulates the
conduct and discipline of U.S. military personnel. The new chapter codifies
eligibility for military commission trials, which it restricts to ―alien
unlawful enemy belligerents,‖16 defines procedural rules, and identifies 32
specific crimes that can be prosecuted by these tribunals.17
II. CONSTRAINTS ON JURISDICTION AUTHORIZED BY THE MCA
A fundamental challenge for subject matter jurisdiction under the MCA

is the fact that this statute was first enacted in 2006, long after the detainees
now facing prosecution were in U.S. custody and all potentially criminal
conduct had been completed. Any new crimes defined by the MCA would
thus constitute ex post facto enactments which are forbidden by both the
U.S. Constitution18 and several LOAC treaties, including article 75 of
Additional Geneva Protocol I of 1977 (AP I).19 The inclusion of this
prohibition in AP I article 75 is particularly significant. The United States
is not a party to AP I but has acknowledged that many parts of the protocol
14
Military Commissions Act of 2006, Pub. L. No. 109-366, 120 Stat. 2600 (Oct. 17,
2006).
15
Military Commissions Act of 2009, Pub. L. No. 111-84, 10 U.S.C. 948. available at
http://www.defense.gov/news/2009%20MCA%20Pub%20%20Law%20111-84.pdf.
[hereinafter MCA].
16
MCA § 948c (10 U.S.C. § 948c) limits trials to ―alien unprivileged enemy
belligerents‖ while § 948a(7) (10 U.S.C. § 948a(7) ) provides the relevant legal definition:
(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.
17
10 U.S.C. § 950t.
18
U.S. Const. art. I, § 9, cl. 3 (stating ―No . . . ex post facto Law shall be passed‖).
19
This rule, sometimes identified by the rubric ―principles of legality,‖ is codified in
multiple instruments extending protections to virtually every conceivable class of persons
involved in an armed conflict, including prisoners of war (Third Geneva Convention art.
99(1)), civilians (Fourth Geneva Convention art. 67), and persons ―who do not benefit from
more favourable treatment under the [1949 Geneva] Conventions (Additional Geneva
Protocol I of 1977 art. 75 ¶4.(c)), and persons involved in non-international armed conflict
(Additional Geneva Protocol II (AP II) of 1977 art. 6 ¶.4.(c)).
are declaratory of customary international law, including Article 75,20 a

view widely shared by leading LOAC commentators.21 That article‘s
protections apply to any ―persons who are in the power of a Party to the
conflict and who do not benefit from more favorable treatment under the
[Geneva] Conventions.‖22 This is important given the U.S. government‘s
position that the Guantánamo detainees are not protected by any other
provisions of the Geneva Conventions, logically leaving them within the
scope of Article 75‘s protection if the fight with al Qaeda is an international
armed conflict.23 Further, the relevant wording in Article 75 reads ―no one
shall be accused or convicted of a criminal offense on account of any act or
omission which did not constitute a criminal offense under the national or
international law to which he was subject at the time when it was committed
. . . .‖24 The law is thus violated when an individual is merely charged or
placed on trial; conviction is not required. Denial of a fair trial is expressly
recognized as a war crime under both customary and treaty law components
of the LOAC, and constitutes a grave breach of the Third and Fourth
20
See e.g., GARY SOLIS, THE LAW OF ARMED CONFLICT 134 nn.67-68 (2010)
(documenting official position taken by State Department Legal Advisor Mike Matheson),
William H. Taft, IV, The Law of Armed Conflict After 9/11: Some Salient Features, 28
YALE J. INT‘L L 319, 322 (2003). This point was also noted by the Supreme Court in
Hamdan v. Rumsfeld, 548 U.S. 557, 633 (2006). The author has provided a more complete
analysis of the applicability of Article 75 to the conflict with al Qaeda in David Glazier,
Full and Fair by What Measure?: Identifying the International Law Regulating Military
Commission Procedure, 24 B.U. INT‘L L. J. 55, 115-118 (2006).
21
See, e.g., YORAM DINSTEIN, THE CONDUCT OF HOSTILITIES UNDER THE LAW OF
INTERNATIONAL ARMED CONFLICT 33 (2004) (noting ―This is particularly important as
regards unlawful combatants who are not entitled to more favorable treatment as prisoners
of war, and it is widely viewed as an expression of customary international law‖).
22
AP I, art. 75 ¶4.(c).
23
It may be countered that AP I applies to international armed conflict and the conflict
with al Qaeda is non-international. The author has argued elsewhere that this approach is
inconsistent with the underlying legal rational for the development of the lessor set of
protections accorded to non-international armed conflict which existing treaties define as
taking place in the territory of one state party. See David Glazier, Playing by the Rules:
Combating al Qaeda Within the Law of War, 51 WM & MARY L. REV. 957, 991-96 (2009).
Further, the government should be estopped from making this argument with respect to the
Guantánamo detainees because the MCA explicitly adopts provisions from the Geneva
Conventions, including its definition of privileged belligerent used in several of the charges
levied against Khadr, which are only applicable in international armed conflict as defined
in Common Article 2 of the four 1949 Conventions. See 10 U.S.C. §§ 948a.(4)-(6),
950p.(a)(2)-(3), 950t.(1), (4), (9)-(10), (13)-(15), and (24). And in any event, the
prohibition against ex post facto crime definition is also incorporated in AP II art. 6
¶.4.(c)).regulating non-international armed conflict and is almost certainly now customary
law regardless of the conflict type.
24
Id. (emphasis added).
Geneva Conventions.25 (Grave breaches of the Geneva Conventions are

both subject to universal jurisdiction, meaning they can be prosecuted by
any nation gaining jurisdiction over the perpetrator, and are federal felonies
under the War Crimes Act of 1996.26)
If, on the other hand, the conflict with al Qaeda is non-international in
character (which raises its own set of logical issues for U.S. conduct),27 then
the United States is bound at an absolute minimum by Common Article 3 of
the 1949 Conventions, which bars ―the passing of sentences and the
carrying out of executions without previous judgment pronounced by a
regularly constituted court, affording all the judicial guarantees which are
recognized as indispensible by civilized peoples.28 Article 6 of Additional
Geneva Protocol II (AP II), addressing non-international armed conflict,
also provides most of the same trial rules as AP I article 75, including the
requirements for individual penal responsibility and requirement that crimes
have been defined at the time of the offense.29 The U.S. has not ratified AP
II, either, but these rules are almost certainly now part of customary
international law as well for any type of conflict,30 so this issue cannot
logically be avoided through efforts at clever lawyering.
Congress clearly recognized the potential issue with ex post facto
enactments in drafting the MCA, and the statute thus declares:
The provisions of this subchapter codify offenses that have

traditionally been triable by military commission. This chapter
does not establish new crimes that did not exist before the date of
the enactment . . . but rather codifies those crimes for trial by
military commission. Because the provisions of this subchapter
codify offenses that have traditionally been triable under the law of
war or otherwise triable by military commission, this subchapter
does not preclude trial for offenses that occurred before the date of
25
JEAN-MARIE HENCKAERTS & LOUISE DOSWALD-BECK, 1 CUSTOMARY
INTERNATIONAL HUMANITARIAN LAW 354-72 (2005).
26
10 U.S.C. § 2441.(c)(1),
27
See note 23 supra.
28
The Supreme Court held that Common Article 3 (CA3) was the minimum standard
applicable to the Guantánamo detainees in Hamdan v. Rumsfeld, but did not rule out the
possibility that the full Geneva Conventions might be applicable, finding it unnecessary to
reach that issue since the original Bush commissions could not pass even the more limited
standards of CA3. 548 U.S. at 628-35.
29
Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to
the Protection of Victims of Non-International Armed Conflicts, June 8, 1977, 1125
U.N.T.s 609-99.
30
See, e.g., International Committee of the Red Cross, Customary IHL, Rules 100-102
at http://www.icrc.org/customary-ihl/eng/docs/v1_rul (last visited Aug. 31, 2010).
the enactment . . . . 31
The political branches simply saying something is so cannot, of course,

make it a legal truth. It is incumbent on any court, including a military
commission, to verify its jurisdiction, 32 and it is the courts, not Congress or
the executive, that have the final say on the validity or meaning of the law.33
This clearly includes interpretation of the law of war when it is employed as
a rule of decision in U.S. tribunals. The Supreme Court explicitly ruled in
precedential World War II era cases that military commission jurisdiction is
predicated on charges that state an actual violation of the law of war. The
first, and perhaps most famous, of these decisions was the 1942 case Ex
parte Quirin,34 reviewing the military commission trial of eight Nazi
saboteurs. Despite the fact that President Roosevelt‘s order establishing the
commission purported to foreclose judicial review, the Supreme Court
convened for a special July term just to hear a habeas challenge to the
tribunal‘s jurisdiction. The Court agreed that it had authority to hear
―petitioners‘ contention that the Constitution and laws of the United States .
. . forbid their trial by military commission‖ despite the presidential
proclamation and the fact that the accused were ―enemy aliens.‖35 It
distilled the fundamental question at issue down to ―whether any of the acts
charged is an offense against the law of war cognizable before a military
tribunal, and if so whether the Constitution prohibits the trial.‖36 The
Court‘s holding established that the set of offenses recognized by the
international law of war constituted the outer limit of potential offenses an
American military commission could try, subject to the additional limitation
that U.S. courts must also recognize the offense and it must not fall within
―that class of offenses constitutionally triable only by a jury.‖37
The Court was again called upon to decide the validity of military
commission charges in early 1946 in the case of Japanese General
Tomoyuki Yamashita.38 This case is best known for the issue of command
responsibility – Yamashita was charged on the basis of having failed to
31
10 U.S.C. § 950
32
The MCA implicitly acknowledges this at 10 U.S.C. § 948d which declares in part
―A military commission is a competent tribunal to make a finding sufficient for
jurisdiction.‖
33
Or as Chief Justice John Marshall definitively declared, ―It is emphatically the
province and duty of the Judicial Department to say what the law is.‖ Marbury v. Madison,
5 U.S. (1 Cranch) 137, 178 (1803).
34
317 U.S. 1 (1942).
35
Ex parte Quirin, 317 U.S. 1, 9 (1942).
36
Id. at 29.
37
Id.
38
In re Yamashita, 327 U.S. 1 (1946)
prevent atrocities by Japanese forces that he had not ordered or even been
aware were being committed.39 Once again the Supreme Court reviewed
applicable international law including in this case a number of treaty
provisions requiring commanders to ensure compliance before concluding
that the charges against Yamashita ―adequately allege a violation of the law
of war.‖40 Likewise, in Johnson v. Eisentrager the Court decided that
breaching surrender terms is a recognized war crime.41
There is at least one other constitutional provision relevant to the
judicial interpretation of the offenses defined in the MCA. The Supreme
Court has held that congressional authorization of military commission
trials constitutes an exercise of its authority ―to define and punish offenses
against the law of nations.‖42 This power is itself logically constrained in
this case by the law of war. As the framers clearly recognized, no
individual nation can make international law by itself; the purpose for
including the clause in the Constitution was to allow Congress to put
Americans on notice as to the precise conduct that would constitute a crime
where there might otherwise be ambiguity.43 But this would not allow
Congress to deliberately depart from clear international rules, particularly
where the prosecution of aliens for acts committed abroad was at issue, and
certainly not when the statutes are being drafted well after the conduct at
issue is complete.44
III. ANALYSIS OF THE CHARGES LEVIED AGAINST OMAR KHADR
Khadr is being tried on five separate charges, although it will be seen

that the underlying logic of several of these is functionally the same. The
charges, in the order they appear on his charge sheet, are:
(1) Murder in Violation of the Law of War

(2) Attempted Murder in Violation of the Law of War
(3) Conspiracy
(4) Providing Material Support for Terrorism
(5) Spying
39
See 327 U.S. at 13-15.
40
Id. at 17.
41
339 U.S. 763, 787-790 (1950).
42
317 U.S. at 28. This provision is found at U.S. Const. art. I, § 8, cl. 10.
43
See 2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 594–95 (Max
Farrand ed., 1937) (Committee of Style and Arrangement).
44
For a more complete discussion of these issues see Stephen I. Vladeck, The Laws of
War as a Constitutional Limit on Military Jurisdiction forthcoming 4 J. NAT‘L SEC. L. &
POL‘Y (2010) available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1661125.
An analysis of the problematic issues with each of these charges as

applied to Khadr‘s factual situation follows.
A. Murder in Violation of the Law of War
This is logically the most serious of the charges that Khadr faces and
certainly the one most likely to generate a visceral desire among the public
for his conviction and severe punishment. The specification setting forth
the particulars of this charge states that in an ―armed conflict and without
enjoying combatant immunity, [Khadr] unlawfully and intentionally
murder[ed] U.S. Army Sergeant First Class Christopher Speer . . . by
throwing a hand grenade at U.S. forces . . . .‖45 To add poignancy to this
charge, the government has prominently seated Speer‘s widow in the first
row of the Guantánamo courtroom during initial trial proceedings.46
There is no reasonable doubt that the LOAC proscribes conduct which
can fairly be described with the nomenclature ―murder in violation of the
law of war.‖ The problem is not in the way that this crime is defined in the
statute, but rather in the factual and legal basis for its application to Khadr.
The relevant MCA language reads:
(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.47
Assuming Khadr did kill a U.S. soldier—a privileged belligerent48—in

open combat as alleged, such killing does not violate the LOAC even if it
45
Referred Charges, supra note 3 at 4.
46
Charley Keyes, Defense Attorney for Gitmo’s Youngest Detainee Hospitalized,
CNN, Aug. 12, 2010 available at
http://www.cnn.com/2010/CRIME/08/12/guantanamo.youngest.detainee/index.html.
47
10 U.S.C. §950v(b)(15) (emphasis added).
48
There is a substantial flaw in the MCA‘s definition of privileged belligerent, found
at 10 U.S.C. § 948a.(6). This section is significantly overbroad, mistaking the Third
Geneva Convention Article 4‘s list of who can qualify as a prisoner of war, which includes
such obvious non-belligerents as ―civilian members of military aircraft crews, war
correspondents, supply contractors, members of labor units or of services responsible for
the welfare of the armed forces . . .‖ for a list of who qualifies as a privileged belligerent.
There does not seem to be any issue with the fact that the individual Khadr is accused of
killing, an active duty U.S. Army sergeant, was a legitimate belligerent, however.
Although Speer has been identified as a member of Delta Force, an organization known to
sometimes operate without military uniforms, there is nothing in the public record
indicating that to have been issue on the day he was mortally wounded.
might be a crime under ordinary domestic law, and it thus falls outside the
scope of the facial language of the MCA. In order to appreciate why this is
so, it is necessary to consider the status of combatants under the LOAC and
the principle of belligerent immunity.
All societies have laws criminalizing the deliberate killing of human
beings and destruction of property, the precise acts which governments call
upon their soldiers to perform in their name during war. To ―legalize‖
soldiers‘ participating in armed conflict, the LOAC must therefore confer
on belligerents the ―combatant‘s privilege,‖ that is, immunity from ordinary
domestic law for violence they commit during their participation in the
fighting.49 But civilized societies have also long recognized the necessity of
controlling the application of force even in wartime.50 Because combatants‘
official acts are placed outside the jurisdiction of ordinary civil law by the
―combatant‘s privilege,‖ the LOAC must then fill the resulting void by
defining any limitations to be placed on the use of force and criminalizing
violations if there are to be meaningful sanctions for its unnecessary or
excessive uses. There is no reason for the LOAC to criminalize the use of
force by unprivileged belligerents, however, because these individuals lack
immunity from ordinary civil law and can be held accountable for any acts
of violence they commit under domestic law, and LOAC experts are in
general agreement that it does not.51
The corollary of the combatant‘s privilege is that combatants themselves
may be freely killed or wounded during an armed conflict.52 Gary Solis
explains that ―[c]ombatants may be attacked at any time until they surrender
or are otherwise hors de combat, and not only when actually threatening the
enemy.‘ . . . . That illustrates the downside of combatancy: A lawful
combatant enjoys the combatant‘s privilege, but is also a continuing lawful
target.‖53
With combatants essentially ―fair game‖ under the LOAC, the primary
focus of the law is identifying and protecting those individuals who are not
liable to direct attack. Under the general rubric of ―willful killing,‖ (rather
than ―murder,‖ although essentially functionally equivalent), the Geneva
Conventions proscribe the deliberate targeting of ―protected persons.‖54
Protected persons are individuals who the LOAC bars attacking, either
49
See Yoram DINSTEIN, THE CONDUCT OF HOSTILITIES UNDER THE LAW OF
INTERNATIONAL ARMED CONFLICT 31 (2004).
50
See, e.g., U.K. MINISTRY OF DEFENSE, MANUAL OF THE LAW OF ARMED CONFLICT,
§§ 1.16-41 (2005) (describing the history of the LOAC).
51
See infra notes 68-69 and accompanying text.
52
See GARY D. SOLIS, THE LAW OF ARMED CONFLICT 41-42 (2010).
53
Id. at 188. Internal citation omitted.
54
See, e.g., KRIANGSAK KITTICHAISAREE, INTERNATIONAL CRIMINAL LAW 150-51
(2001).
because they have never been legitimate participants in hostilities, or

because they no longer are. In the former category are civilians (other than
those directly participating in hostilities)55 and ―non-combatants,‖ members
of an armed force assigned to medical or religious duties (chaplains) or civil
defense functions and legally barred from participating in hostilities in any
role except limited self-defense. In the latter category are found combatants
who have been placed hors de combat due to incapacitation by illness or
wounds, those who have voluntarily offered surrender, the shipwrecked,
and aircrew forced to bail out of damaged aircraft who make no effort to
resume hostile action.56 Deliberately killing any of these individuals during
the conduct of hostilities would be ―in violation of the law of war.‖
This is not to say that the killing of an active combatant can never
constitute a war crime. It can in certain limited circumstances if LOAC
proscriptions against impermissible means and methods of warfare are
violated. Longstanding international law provides that ―the right of
belligerents to adopt means of injuring the enemy is not unlimited.‖57
Situations in which killing a combatant can constitute a violation of the
LOAC generally fall into two categories: use of a prohibited weapon or
means such as poison, or killing by means of treachery or perfidy. The
LOAC can proscribe particular weapons either by specific agreement or
because they violate general principles addressing ―superfluous injury‖ or
―unnecessary suffering.‖58 Attacks involving treachery or ―perfidy‖ are
essentially hostile acts facilitated by inducing the adversary to erroneously
believe that the attacker is entitled to protected status under the LOAC, such
as false use of a flag of truce or the removal of uniforms to deliberately
blend in with a civilian population.59 Published accounts of the firefight in
which Khadr is accused of participating suggest that U.S. forces launched
the initial attack, indicating that they had no difficulty distinguishing Khadr
and his comrades from the civilian population and there is thus no issue of
perfidy in play.60
55
The LOAC recognizes the right of combatants to attack civilians, who normally
enjoy complete protection from deliberate attack, at any time that they are directly
participating in hostilities. For a detailed discussion of this subject, see INTERNATIONAL
COMMITTEE OF THE RED CROSS (ICRC), INTERPRETIVE GUIDANCE ON THE NOTION OF
DIRECT PARTICIPATION IN HOSTILITIES UNDER INTERNATIONAL HUMANITARIAN LAW
(2009)
56
DINSTEIN supra note 49 at 150-51.
57
Regulations concerning the Laws and Customs of War on Land. The Hague, 29 July
1899, Art. 22 [hereinafter Hague Regulations].
58
See, e.g., UK MINISTRY OF DEFENCE, THE MANUAL OF THE LAW OF ARMED
CONFLICT §§6.1.4-2.2 (2005).
59
See DINSTEIN supra note 49 at 200-206.
60
Hajjar, supra note 5.
When an otherwise lawful combatant subject to the LOAC commits one

of these violations, they are subject to trial under that law, that is to say they
can be prosecuted for a ―war crime.‖ This was the case with the Nazi
saboteurs reviewed by the Supreme Court in Ex parte Quirin. The Court
held that discarding their uniforms upon passing through the lines (i.e.,
coming ashore on U.S. soil) made the saboteurs unlawful combatants who
were ―subject to trial and punishment by military tribunals for acts which
render their belligerency unlawful.‖61 It is a fine distinction, but the Court
is using ―unlawful combatants‖ to refer to individual belligerents who
engage in personal conduct violating law of war rules, not an entire
opposing force like al Qaeda. Having specifically noted the saboteurs‘
employment by the German military,62 the Court thus would logically have
upheld their entitlement to Prisoner of War (PW) status and immunity from
prosecution if they had been captured at sea or seized on the beach while
still wearing military uniform items.
This approach is also consistent with the practice of earlier commissions
as well. Writing in the latter part of the 19th century based on the
experiences of the Mexican and Civil Wars, William Winthrop, whom the
Supreme Court would later call ―the Blackstone of military law,‖63
described in some detail the legitimate jurisdiction of military commission.
Winthrop identified four categories of individuals liable to trial by
commissions:
(1) Individuals of the enemy’s army who have been guilty of

illegitimate warfare or other offenses in violation of the laws of
war; (2) Inhabitants of enemy‘s country occupied and held by the
right of conquest; (3) Inhabitants of places or districts under
martial law; (4) Officers and soldiers of our own army, or persons
serving with it in the field, who, in time of war, become chargeable
with crimes or offences not cognizable, or triable, by the criminal
courts or under the Articles of war.64
But what of a force like al Qaeda which seems to have no uniforms and
no regard for the LOAC at all? The LOAC imposes certain criteria for
qualification as a lawful combatant which are formally articulated in the
Hague Regulations governing land warfare:
61
317 U.S. at 31.
62
Id. at 21-22, 36-37
63
JOSHUA E. KASTENBERG, THE BLACKSTONE OF MILITARY LAW 315-16 2009
(identifying U.S. Supreme Court decisions citing Winthrop and noting the Blackstone
accolade is found in the Court‘s 1957 Reid v. Covert decision).
64
WILLIAM WINTHROP, MILITARY LAW AND PRECEDENTS *1307 (emphasis added).
Article 1. The laws, rights, and duties of war apply not only to
armies, but also to militia and volunteer corps fulfilling the following
conditions:
1. To be commanded by a person responsible for his
subordinates;
2. To have a fixed distinctive emblem recognizable at a
distance;
3. To carry arms openly; and
4. To conduct their operations in accordance with the laws
and customs of war.
In countries where militia or volunteer corps constitute the army, or
form part of it, they are included under the denomination "army." 65
Since al Qaeda personnel largely fail to have fixed distinctive emblems

or uniforms66 and do not adhere to the LOAC, they have no right to claim
the combatant‘s privilege. Lacking this immunity they are fully liable to
prosecution under ordinary domestic law for any acts of violence they
commit, as well as the LOAC for actual war crimes, such as killing
protected persons. German civilians who participated in the killing of
Allied prisoners of war were thus prosecuted for war crimes along with
German military personnel who encouraged or facilitated those killings, for
example.67 But the law of war does not proscribe the routine killing of
combatants, even by those with no right to participate in hostilities. As
Professor Dinstein explains, ―With unlawful combatants, [LOAC] refrains
from stigmatizing the acts as criminal. It merely takes off a mantle of
immunity from the defendant, who is therefore accessible to penal charges
for any offense committed against the domestic legal system.‖ 68 The ICRC
notes that this opinion was the ―prevailing view‖ among the participants in
its expert meetings and states unequivocably that international law:
65
Hague Regulations, supra note 57 art. 1, It is sometimes argued, based on a strictly
litteral reading of this language, that members of an ―army‖ need not have a distinctive
emblem or uniform, carry arms openly, etc. since these specific criteria are only explicitly
assigned to ―militia and volunteer corps.‖ But the better reading in the opinion of the
author and most other LOAC scholars is that these criteria are considered to be a core part
of what it means to be an ―army‖ and thus were not considered to need explicit mention in
conjunction with that term. See, e.g., See DINSTEIN supra note 49 at 33-36.
66
Some reports indicate, however, that al Qaeda did have a uniformed brigade at the
time of the U.S. intervention in Afghanistan. See Brian Glyn Williams, The Al-Qaida We
Don’t Know: The 055 Brigade, WORLD POL. REV. Oct. 26, 2008 at
http://www.worldpoliticsreview.com/article.aspx?id=2821
67
See, e.g., UNITED NATIONS WAR CRIMES COMMISSION, 1 LAW REPORTS OF TRIALS
OF WAR CRIMINALS 88-92 (1947).
68
DINSTEIN supra note 49 at 200
provides an express ‗right‘ to directly participate in hostilities only

for members of the armed forces of parties to international armed
conflicts . . . The absence in [LOAC] of an express right for
civilians to directly participate in hostilities does not necessarily
imply an international prohibition of such participation. Indeed, as
such, civilian direct participation in hostilities is neither prohibited
by [LOAC] nor criminalized under the statutes of any prior or
current international tribunal or court. However, because civilians
. . . are not entitled to the combatant privilege, they do not enjoy
immunity from domestic prosecution for lawful acts of war, that is,
for having directly participated in hostilities while respecting
[LOAC] . . . . [They] may be prosecuted and punished to the extent
that their activities, their membership, or the harm caused by them
is penalized under national law (as treason, arson, murder, etc.).69
This theoretical understanding is supported by evidence of historical

U.S. practice. The law of war has evolved very rapidly in the past century-
and-a-half and one must be cautious in inferring that past events can justify
current conduct. It is generally necessary to consider intervening legal
developments before concluding that acts carried out in earlier periods
provide valid legal precedent today. But it is illustrative that Winthrop‘s
itemization of commission jurisdiction described only ―[i]ndividuals of the
enemy‘s army‖ as falling under law of war jurisdiction.70 U.S. military
commissions tried try several cases charged as ―murder in violation of the
law of war‖ during the 1899-1902 Philippine Insurrection following the
Spanish-AmericanWar.71 Some of these cases referred to the perpetrators
as ―guerillas‖ or ―outlaws,‖72 but in each case in which factual details are
provided, it is clear that it was the actual conduct involved, not the status of
the perpetrators, which rendered the offense ―in violation of the law of
war.‖73 Acts charged under this nomenclature included burying a wounded
69
ICRC, supra note 55 at 83-84.
70
See text accompanying supra note 64.
71
For a concise general discussion of these oft-overlooked commissions, see Glazier,
supra note 11 at 47-56. Summaries of individual cases in the form of the general orders
issued by the senior U.S. commander in the Philippines reporting the results of his review
of each trial were collected by Congress and published in Charges of Cruelty, Etc. to the
Natives of the Philippines, S. Doc. 51-1 No. 205 Pt. 2 (1902) [hereinafter ―S. Doc. 205‖].
72
See, e.g., Headquarters Division of the Philippines, General Orders, No. 264, Sept.
9, 1901 in S. Doc. 205, supra note 71 at 364; Headquarters Division of the Philippines,
General Orders, No. 334, Oct. 29, 1901 in S. Doc. 205, supra note 71 at 366.
73
There are several cases in which insufficient facts are given in the review to
definitively assess the basis for holding the killing to have been ―in violation of the law of
war,‖ although it appears that these acts took place behind the lines in areas under U.S.
U.S. sailor alive,74 several killings of prisoners,75 and the use of assassins
behind the lines.76 In another case an individual living within U.S.
controlled territory ―as an ‗amigo‘‖ was initially convicted of murder in
violation of the law of war for directing the killing of two American
soldiers. The conviction was subsequently disapproved because the
reviewing authority found that the soldiers were killed in an open
engagement by the fire of ―insurgent soldiers‖ and therefore this was ―not
murder, but a natural consequence incidental to a state of war.‖77
The legal issue in Khadr‘s case is not with the MCA language, which is
unobjectionable given that the phrase ―including privileged belligerents, in
violation of the law of war‖ can be fairly read to mean killing privileged
belligerents by prohibited means or methods, which does violate the laws of
war.78 The issue is with its actual overbroad application by the Guantánamo
commissions to make any killing by an unprivileged belligerent fall within
this definition. The U.S. approach has the practical effect of converting this
armed conflict into a human hunting season; the government asserts U.S.
combatants had the right to shoot Khadr on sight (he was shot twice in the
back based on his being a ―hostile‖ rather than because he posed any
particular threat at the time)79 yet criminally prosecute him for fighting
military governance. This implies that treachery may have been involved, and accounts of
stabbings with bolo knives by groups of assailants suggest that the attacks persisted beyond
the point at which the individuals were rendered incapable of further resistance; both would
be grounds for finding substantive violation of the LOAC. See Headquarters Division of
the Philippines, General Orders, No. 9, Apr. 24, 1900, in S. Doc. 205, supra note 71 at 335-
36; Headquarters Division of the Philippines, General Orders, No. 334, Oct. 29, 1901, in S.
Doc. 205, supra note 71 at 366-67.
74
Headquarters Division of the Philippines, General Orders, No. 150, Dec. 26, 1900,
in S. Doc. 205, supra note 71 at 345-47.
75
Headquarters Division of the Philippines, General Orders, No. 198, July 31, 1901, in
S. Doc. 205, supra note 71 at 359-60; Headquarters Division of the Philippines, General
Orders, No. 264, Sep. 9, 1901, in S. Doc. 205, supra note 71 at 364-65; and Headquarters
Division of the Philippines, General Orders, No. 370, Nov. 30, 1901, in S. Doc. 205, supra
note 71 at 370-71.
76
Headquarters Division of the Philippines, General Orders, No. 370, Nov. 30, 1901,
in S. Doc. 205, supra note 71 at 369-70.
77
Headquarters Division of the Philippines, General Orders, No. 171, July 13, 1901, in
S. Doc. 205, supra note 71 at 357. The review did note that the accused could have tried
for being a war traitor since ―while living within the lines of the United States occupation,
he aided and abetted the enemy.‖ Id.
78
Murder in violation of the law of war as defined by 10 U.S.C. § 950t(15) can fairly
be read to partially overlap with another MCA offense, Murder of Protected Persons, 10
U.S.C. § 950t(1) but they are not entirely redundant, as only the former extends protections
to actual belligerents and the latter could apply to situations in which an individual is killed
during conduct not regulated or proscribed by the LOAC, i.e., ―not in violation of the law
of war.‖
79
Keyes, supra note 46. ―Hostile‖ is military parlance for an enemy who may
back. This approach repudiates the functional equivalence between the

conflict parties which is a core element of the LOAC and attempts to
transform this law from one evenhandedly regulating the conduct of both
parties into a unilateral shield for one side.
This unjustifiable stretch is traceable to the supplemental guidance
provided to DOD personnel implementing the MCA in the form of the
Manual for Military Commissions (MMC). The MMC is the direct
counterpart of the Manual for Courts-Martial which provides necessary
amplification for conducting regular court-martial trials under the UCMJ.
Similarly, the MMC performs several important functions for the
commissions, including providing amplifying guidance on issues the MCA
leaves to the discretion of the Secretary Defense80 and the specific elements
which must be proved for each offense defined by the statute. The MMC
establishes the elements for ―Murder in Violation of the Law of War‖ as:
(1) One or more persons are dead;

(2) The death of the persons resulted from the act or omission of
the accused;
(3) The killing was unlawful;
(4) The accused intended to kill the person or persons;
(5) The killing was in violation of the law of war; and
(6) The killing took place in the context of and was associated with
an armed conflict.81
While less than elegant prose, and unclear about what is the difference
between being ―unlawful‖ and ―in violation of the law of war,‖ there is
nothing inherently rising to the level of a fatal flaw in this formulation. But
the MMC ―Comment‖ following these elements states that an accused ―may
be convicted in a military commission for these offenses if . . . 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.‖82
It is not clear that Congress has the constitutional authority to make
lawfully be engaged because of that status under the Rules of Engagement in effect. See,
e.g., Air Land Sea Application Center, Multi-Service Brevity Codes II-12 (2003) available
at http://www.scribd.com/doc/12931024/US-Multi-Service-Brevity-Codes.
80
See, e.g., 10 U.S.C. § 949a.(b) (allowing the Secretary of Defense, in consultation
with the Attorney General to authorize military commissions to make necessary departures
from court-martial rules of procedure and evidence).
81
Manual for Military Commissions 2010 at IV-13.
82
Id.
murder committed while the accused did not meet the requirements of
privileged belligerency—a matter which the law of war leaves to domestic
law—triable by military commission outside an actual theater of war where
a commission might have effective domestic law authority as well as
jurisdiction as a law of war court.83 But there is no issue of domestic legal
authority here because the plain meaning of the statutory language shows
that Congress has explicitly limited the statute‘s application to killings
which violate the law of war—the existence of such violation constitutes a
core part of the crime. The MMC apparently recognized this initially by
correctly incorporating this requirement into the elements of the offense.
Even if he might be entitled to so-called ―Chevron deference‖ in
interpreting ambiguous portions of the MCA, the Secretary of the Defense
cannot dispense with the clear facial statutory language of the statute84 (or
the elements he has just set forth) with a simple comment opening up the
offense to other conduct because he really wants to try individuals like
Khadr who have killed but haven not violated the law of war per se. 85
The conclusion that Khadr cannot validly be prosecuted by military
commission, or any other court, for ―murder in violation of the law of war‖
is not a bar to him being held criminally accountable for his actions if he
did, indeed, throw the grenade which killed the U.S. soldier. Lacking
combatant immunity, he can be prosecuted in a regular U.S. district court
for violating any applicable federal criminal statute which has the
extraterritorial application necessary to reach conduct in Afghanistan.
Alternatively, the United States could return him to Afghanistan to face
prosecution under the applicable domestic law of that nation.
It should be noted that this conclusion, while fatal to Khadr‘s
prosecution on this charge, may actually serve the United States‘ larger
overall interests. If the military commission prosecution team was correct
that participation in hostilities by a non-uniformed civilian constituted a war
83
See, e.g., Chad De Veaux, Rationalizing the Constitutions: The Military
Commissions Act and the Dubious Legacy of Ex Parte Quirin, 42 AKRON L. REV. 13
(2009) (arguing that Congress can only allow Article III courts, not military commissions,
to try offenses outside an active theater of combat).
84
Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837, 842-43
(1984) (declaring that courts will defer to permissible interpretations of ambiguous
statutory language by the federal agency tasked with implementing it, but that ―[i]f the
intent of Congress is clear, that is the end of the matter; for the court as well as the agency
must give effect to the unambiguously expressed intent of Congress‖).
85
This error actually originated, although in different language and form, in the
MANUAL FOR MILITARY COMMISSIONS 2007 issued following the enactment of the original
2006 MCA. For a comprehensive critique of why DOD exceeded its legal authority in
expanding this offense in the MMC, see Joseph C. Hansen, Note, Murder and the Military
Commissions: Prohibiting the Executive’s Unauthorized Expansion of Jurisdiction, 93
MINN. L. REV. 1871 (2009).
crime, then it would be declaring all those participating in, supervising, and
having authorized, the CIA‘s drone program to be war criminals, including
logically both the immediate past and current commanders-in-chief.86 This
criminalization would also extend to the use of CIA paramilitary personnel,
to U.S. special forces troops fighting in civilian clothes, as well as logically
to U.S. support for third country ―unprivileged belligerents,‖ such as the
original Afghan mujahidin who opposed the Soviet invasion. Incredibly,
testimony at Khadr‘s aborted first trial sessions indicated that an armed CIA
officer in civilian clothes—an unprivileged belligerent—was among the
Americans participants at the firefight in which Speer was fatally
wounded.87 While the allies have been accused of applying a one-sided
―victor‘s justice‖ to captured Axis personnel in World War II era war
crimes,88 the author knows of no instance in which the enemy was punished
for conduct which the allies had also engaged in during the precise events in
question.89
B. Attempted Murder in Violation of the Law of War
The second charge preferred against Khadr is ―Attempted Murder in

Violation of the Law of War,‖ based on allegations that he endeavored to
kill American or coalition force military personnel ―by converting land
mines into improvised explosive devices and planting them in the
ground.‖90 This charge is also grounded in express statutory MCA
language:
(28) ATTEMPTS.—
(A) IN GENERAL.—Any person subject to this chapter who
86
See Written Testimony of Professor David Glazier, House Subcommitte on National
Security and Foreign Affairs, Hearing on the Rise of the Drones II: Examining the Legality
of Unmanned Targeting, Apr, 28, 2010 at
http://oversight.house.gov/images/stories/subcommittees/NS_Subcommittee/4.28.10_Dron
es_II/Glazier_Statement.pdf.
87
See Keyes, supra note 46. See also SHEPARD, supra note 2 facing page 126
(reprinting photo showing personnel involved in the firefight providing medical treatment
to Khadr; one of the individuals standing over him with a rifle slung over his shoulder is
dressed like a stereotypical American farmer rather than a soldier, wearing blue overalls, a
blue checked shirt, and a tan baseball hat
88
See KITTICHAISAREE supra note 54 at 19-20.
89
The Nuremberg tribunal refused to convict German Admiral Karl Donitz for the
alleged war crime of directing unrestricted submarine warfare based in part on a deposition
from U.S. Admiral Chester Nimitz acknowledging the U.S. Navy had done the same
against Japan. See Judgment of the International Military Tribunal, Judgement: Doenitz at
http://avalon.law.yale.edu/imt/juddoeni.asp (last visited Aug. 22, 2010).
90
Referred Charges, supra note 3 at 4.
attempts to commit any offense punishable by this chapter shall be

punished as a military commission under this chapter may direct.
(B) SCOPE OF OFFENSE.—An act, done with specific intent to
commit an offense under this chapter, amounting to more than
mere preparation and tending, even though failing, to effect its
commission, is an attempt to commit that offense.91
Again there is nothing facially problematic with this language, but

since each application necessarily incorporates one of the basic MCA
offenses, it is subject in practice to any issues associated with that base
charge. In this case the attempt charge encounters the same problem as
Khadr‘s murder charge—although the offense is capable of valid
application, the specific conduct described in the specification fails to state
a violation of the LOAC.
The last three decades have seen substantial development of the
international law regulating the use of mines and booby traps, and the
specific legal rules are now fairly complex.92 The driving force behind this
development has been growing awareness over the substantial harm that
indiscriminate weapons have wreaked on civilian populations, often long
after actual conflicts have ended. The primary focus of these legal
developments has thus been on restricting the weapons most likely to inflict
civilian casualties, including deceptive looking booby traps and anti-
personnel mines readily detonated by unintended victims.93 The United
States has played the leading role in efforts to resist the full development of
these efforts, however, refusing to join the 156 other nations who are party
to the 1997 Ottawa Convention outlawing anti-personnel mines,94 and thus
has less basis than most other nations to object to mine use. But in any
event, there is nothing inherently unlawful about the use of improvised
explosive devices (IEDs) by any conflict party,95 as well no prohibition on
91
10 U.S.C. §950t(28).
92
See SOLIS, supra note 52 at 578-85
93
See id; see also DINSTEIN supra note 21 at 67-69.
94
Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of
Anti-Personnel Mines and on Their Destruction, Sep. 18, 1997, 2056 U.N.T.S. 211. A
current list of state parties can be found at
http://treaties.un.org/pages/ViewDetails.aspx?src=UNTSONLINE&tabid=2&mtdsg_no=X
XVI-5&chapter=26&lang=en.
95
The term ―improvised explosive devices‖ became part of the formal LOAC lexicon
when it was incorporated into Article 2, paragraph 5 of the Protocol on Prohibitions or
Restrictions on the Use of Mines, Booby-Traps and Other Devices as amended on 3 May
1996 annexed to the Convention on Prohibitions or Restrictions on the Use of Certain
Conventional Weapons which may be deemed to be Excessively Injurious or to have
Indisriminate Effects, May 3, 1996, 2048 U.N.T.S 93. This agreement is applicable to
parties to both international and non-international conflicts. Id. art. 1, ¶¶ 2-3.
the use of anti-vehicle mines. Reports from Khadr‘s trial state that evidence
the government will use against him suggests he was involved in the
conversion of anti-tank mines into IEDs.96 Ironically, taking mines which
would indiscriminately detonate under the weight of a heavy passing
vehicle, whether military or civilian, and converting them into devices
which can be selectively command detonated to specifically target opposing
military forces should actually be a favored activity under the LOAC, even
if uniquely detrimental to U.S. forces.
The implicit gravamen of this charge as applied to Khadr is thus not
that his particular conduct violated the law of war, which is a necessary
element for conviction under the statutory language, but rather once again
his status as an unprivileged belligerent. As explored above, while this
status may well support prosecution for acts of violence (and attempts to
commit acts of violence) under ordinary domestic laws from which he
enjoys no immunity, it does not support prosecution under the LOAC.97
C. Conspiracy
The third charge levied against Khadr, ―conspiracy,‖ differs from those
already discussed in that it is problematic as a violation of the LOAC in any
context, although particularly so as applied to this defendant. The offense is
defined in the MCA as follows:
(29) CONSPIRACY.—Any person subject to this chapter who

conspires to commit one or more substantive offenses triable by
military commission under this subchapter, and who knowingly
does any overt act to effect the object of the conspiracy, shall be
punished, if death results to one or more of the victims, by death or
such other punishment as a military commission under this chapter
may direct, and, if death does not result to any of the victims, by
such punishment, other than death, as a military commission under
this chapter may direct.98
Although this definition appears quite reasonable to those schooled in

the Anglo-American legal tradition of inchoate crimes, there are a number
of reasons why it is not consistent with the LOAC. First, international law
necessarily must reflect the legal consensus of the community of nations,
not just those from one heritage, and the substantive offense of conspiracy
96
Keyes, supra note 46.
97
See section III.A supra.
98
10 U.S.C. § 950t(28).
is far from universally recognized.99 Indeed, the idea that conspiracy to

commit a war crime itself constituted a war crime was explicitly considered,
and rejected, by U.S. law of war tribunals following World War II.100 More
extensive discussion of the problematic nature of this charge can be found
in the plurality opinion in the Hamdan case.101 Four justices concluded that
conspiracy was not a war crime but Justice Kennedy, who cast the deciding
fifth vote overall, felt it was unnecessary to reach this question of
substantive law since the Court was overturning the trial itself on procedural
grounds.102 The plurality noted that the alleged conspiracy spanned the
years from 1996-2001, largely predating the formal U.S. conflict with al
Qaeda, and that none of the conduct Hamdan was personally alleged to have
committed violated the law of war.103
This observation seems even more valid when applied to Khadr who
even the government‘s allegations accuse only of being personally
associated with al Qaeda during a two month span in June and July of 2002,
a period well after all the egregious acts attributed to that organization in his
charge sheet—the 1998 embassy bombings, 2000 attack on the Cole, and
9/11—were were already past history.104 The charge sheet then enumerates
Khadr‘s personnel role in the ―conspiracy,‖ which essentially simply
reiterates that he received weapons training from al Qaeda, engaged in
―surveillance and reconnaissance against the U.S. military,‖ was involved in
converting and planting IEDs, and was in a lethal firefight with U.S. and
coalition personnel in which he is alleged to have killed two Afghan
militiamen as well as Sergeant Speer. But there is no allegation of personal
participation in, or support for, criminal violations of the law of war during
the period of his involvement.
Fundamentally, then, these charges distill down to the idea that Khadr
fought on the wrong side. The key flaw with the government‘s treatment of
this issue is that the LOAC is grounded in a basic legal equality accorded to
the fighters on both sides in an armed conflict.105 International law rules
comprising the jus ad bellum regulate the resort to the use of force and
make it a crime for responsible decision makers to unlawfully initiate
hostilities—offenses that were deemed ―crimes against peace‖ at the
99
See e.g., Allison Marston Danner & Jenny S. Martinez, Guilty Association: Joint
Criminal Enterprise, Command Responsibility, and the Development of International
Criminal Law, 93. CAL. L. REV. 75, 115-16 (2005).
100
15 U.N. WAR CRIMES COMM‘N LAW REPORTS OF TRIALS OF WAR CRIMINALS 90
(1949).
101
548 U.S. at 598-611 (Stevens, J. plurality opinion)
102
Id. at 655 (J. Kennedy concurring in part).
103
Id. at 598-600
104
Preferred charges, supra note 3.
105
See DINSTEIN supra note Error! Bookmark not defined. at 4.
Nuremberg and Tokyo tribunals. But the law deliberately separates these
jus ad bellum rules from the jus in bello which govern the actual fighting. It
thus makes no legal difference as to what cause the soldier fights for;106 the
LOAC gives individual combatants on both sides equal rights and
obligations. Logic demands this for several reasons. First a law
discriminating on the basis of which side was in the right would be
untenable – it is all but unheard of for one side in an armed conflict to
acknowledge it is wrong. Further law cannot fairly hold individuals who
have no say whatsoever in decisions legally accountable for them, and
several LOAC provisions make it explicitly clear that only personal
culpability can be criminalized.107 Although it can be argued that the trial of
organizations at Nuremberg was an abortive step towards doing this, it has
since been thoroughly discredited and this is reflected in the language of AP
I Article 75.108 And on a practical level, if merely fighting for the wrong
side placed belligerents for one party outside the coverage of the LOAC,
they would have no incentive whatsoever to comply with its rules, virtually
ensuring the conflict‘s rapid descent into total barbarity. Khadr‘s
conspiracy charge is the logical equivalent of trying to hold every World
War II German combatant liable for conspiracy to commit genocide, crimes
against humanity, or waging aggressive war.
D. Providing Material Support to Terrorism
The fourth charge against Khadr, ―providing material support to

terrorism‖ shares similar issues with conspiracy—it both lacks any
recognized grounding in international law109 and the ―unlawful‖ conduct
specified in Khadr‘s charge sheet fails to describe any activity which
violates the law of war. Essentially Congress seems to have simply taken
an ordinary criminal statute, with a sound track record of successful use to
prosecute terrorists in regular federal courts,110 and sought to convert it into
a military offense triable by the Guantánamo commissions.
As codified in the MCA, the offense reads:
106
See, e.g., GREEN supra note Error! Bookmark not defined. at 18-19.
107
See, e.g., AP I, article 75 supra note x, ¶ 4. (b) (declaring ―no one shall be convicted
of an offense except on the basis of individual penal responsibility.‖).
108
See COMMENTARY ON THE ADDITIONAL PROTOCOLS § 3098 (Yves Sandoz et al., ed.
1987).
109
James G. Vanzant, Note: No Crime Without Law: War Crimes, Material Support
for Terrorism, and the Ex Post Facto Principle, 59 DePaul L. Rev. 1053 (2010).
110
A Human Rights First Study found that 73 defendants were successfully convicted
of material support offenses (18 U.S.C. §§ 2339A and 2339B) in federal courts between
2001 and the end of June 2009. See RICHARD B. ZABEL & JAMES J. BENJAMIN, JR., IN
PURSUIT OF JUSTICE 12 (2009).
(25) PROVIDING MATERIAL SUPPORT FOR TERRORISM.—

(A) OFFENSE.—Any person subject to this chapter who provides
material support or resources, knowing or intending that they are to
be used in preparation for, or in carrying out, an act of terrorism
(as set forth in paragraph (24) of this section), or who intentionally
provides material support or resources to an international terrorist
organization engaged in hostilities against the United States,
knowing that such organization has engaged or engages in
terrorism (as so set forth), shall be punished as a military
commission under this chapter may direct.
(B) MATERIAL SUPPORT OR RESOURCES DEFINED.—In
this paragraph, the term ‗material support or resources‘ has the
meaning given that term in section 2339A(b) of title 18.111
A full appreciation of the offense can thus only be gleaned from

reading two additional pieces of statutory language, the immediately
preceding paragraph of the MCA which defines ―terrorism,‖ and the first of
the actual federal material support statutes. (It seems wholly illogical to
assert that a law of war violation can be defined by reference to one nation‘s
purely domestic law statute, however.112)
Although the international community has been unable to establish an
agreed definition of terrorism despite years of effort, the MCA endeavors to
by providing the following definition:
(24) TERRORISM.—Any person subject to this chapter who

intentionally kills or inflicts great bodily harm on one or more
protected persons, or intentionally engages in an act that evinces a
wanton disregard for human life, in a manner calculated to
influence or affect the conduct of government or civilian
population by intimidation or coercion, or to retaliate against
government conduct, shall be punished, if death results to one or
more of the victims, by death or such other punishment as a
military commission under this chapter may direct, and, if death
does not result to any of the victims, by such punishment, other
111
10 U.S.C. § 950t(25).
112
Compare this provision with other federal statutes ―defining and punishing‖
offenses against the ―law of nations,‖ which refer to international, not U.S. definitions,
such as 18 U.S.C. § 1651 (criminalizing ―piracy as defined by the law of nations‖) and 18
U.S.C. § 2441 (defining war crimes by specific references to international LOAC treaties,
including the Hague Land Warfare Regulations of 1907 and the 1949 Geneva
Conventions).
than death, as a military commission under this chapter may

direct.113
Finally, the MCA offense of providing material support adopts the

definition of ―support or resources‖ from the regular federal offense
codified in Title 18 of the United States Code:
(1) the term ―material support or resources‖ means any

property, tangible or intangible, or service, including currency or
monetary instruments or financial securities, financial services,
lodging, training, expert advice or assistance, safehouses, false
documentation or identification, communications equipment,
facilities, weapons, lethal substances, explosives, personnel (1 or
more individuals who may be or include oneself), and
transportation, except medicine or religious materials;
(2) the term ―training‖ means instruction or teaching designed
to impart a specific skill, as opposed to general knowledge; and
(3) the term ―expert advice or assistance‖ means advice or
assistance derived from scientific, technical or other specialized
knowledge.114
Despite the widespread use of what could effectively be categorized as

―terror bombing‖ attacks on urban civilian populations by virtually all the
major participants in World War II, the law of war expressly forbids
deliberate attacks on civilian persons or objects. There is little doubt,
therefore, that individuals who have planned, directed, carried out, or aided
and abetted such attacks in the context of an armed conflict can be
prosecuted under the LOAC. But the MCA offense endeavors, whether
through deliberate crafting or sloppy drafting, to go much further.
The federal crime on which this offense is logically based requires that
the offender have the mens rea of ―knowing or intending‖ that the support
they provide is going to be used to aid in carrying out a defined criminal
offense from a specific list set forth in the statute.115 The MCA offense, in
contrast only requires that an individual provides support ―to an
international terrorist organization engaged in hostilities against the United
States, knowing that such organization has engaged . . . in terrorism.116 The
plain language of the statute thus means that (a) once al Qaeda had
conducted any terrorist attack; and, (b) the United States decided to invoke
113
10 U.S.C. § 950t(24).
114
U.S.C. § 2339A (b) (1) – (3).
115
18 U.S.C. 2339A. (a).
116
10 U.S.C. § 950t(25).
the LOAC in response, it became a crime for any individual to provide it

any assistance falling within the broad range of support specified in the
federal statute, which includes providing financial resources or personal
services. If viewed in terms of a conventional conflict, this logic would
allow criminal prosecution not only of every member of the armed forces of
an adversary which had engaged in sufficiently egregious conduct, but also
every one of its civilian government employees and even its taxpayers.
The specific application against Khadr again reflects the flawed nature
of the charge. None of the conduct described (which simply repeats the
previous language used under the conspiracy charge) shows any personal
involvement with, or support for, actions actually proscribed by the law of
war. He is accused of receiving military training, working with IEDs, and
participating in a firefight with Afghan militia and U.S. troops.117 The only
basis for the charge is thus that he did so on behalf of an organization that
had previously engaged in terrorism. But as already noted, the law of war
specifically refuses to hold individual combatants without the ability to
influence the overall conduct of their side responsible for the cause for
which they fight,118 leaving them legally accountable only for their own acts
which are judged by the jus in bello, not the jus ad bellum.
E. Spying
The final charge against Omar Khadr, spying, is uniquely flawed. First,
the MCA‘s definition of the offense errs in its treatment of the relevant
international law. But even more fundamental than this linguistic difficulty
is the fact that the government‘s charge sheet provides prima facie
documentation that Khadr cannot lawfully be prosecuted for spying upon
the specific facts which the government alleges, suggesting that the
prosecution is either ignorant, or contemptuous, of the law of war.
The MCA addresses spying in its Article 950t:
(27) SPYING.—Any person subject to this chapter who, in

violation of the law of war and with intent or reason to believe that
it is to be used to the injury of the United States or to the advantage
of a foreign power, collects or attempts to collect information by
clandestine means or while acting under false pretenses, for the
purpose of conveying such information to an enemy of the United
States, or one of the co-belligerents of the enemy, shall be
punished by death or such other punishment as a military
117
Preferred charges, supra note 3.
118
See Part III.C. supra.
commission under this chapter may direct.119
Although the term ―spy‖ is colloquially applied to those engaging in

espionage under U.S. domestic criminal law,120 the military offense of
spying is entirely sui generis. One element that makes the offense of spying
exceptional is that it is defined by the law of war, which authorizes
punishment by victim nations as a means of self-defense, but it is not a war
crime. Although subject to trial and potential execution by the victimized
force, the spy does not personally violate international law, cannot be tried
by any other party unlike an actual war criminal subject to potential
universal jurisdiction, and a commander commits no legal violation by
employing him.121 George Washington regularly employed spies122 without
any hypocrisy even while directing the trial or other examination, and
frequent execution, of more than two-dozen British agents during the course
of the Revolution.123 The requirement stated in the MCA that the act must
be ―in violation of the law of war‖ is thus legally nonsensical. Perhaps the
drafters meant to say ―as defined by the law of war‖ or perhaps they were
simply ignorant of the law. But the facial result in this case is a flawed
statute that may well be beyond salvage even give previous Supreme Court
willingness to allow federal criminal law to be ―read with the [same] saving
grace of common sense with which other enactments . . . are to be read.‖124
The second particularly unique aspect of the military offense is that the
law of war requires that a spy must actually be caught while behind the
lines on false pretenses; a successful return to friendly forces acts as a
permanent bar to punishment.125 Ironically this is also one of the longest
standing LOAC rules, and can be found in almost every major effort at
explaining or codifying rules of warfare, ranging from the Lieber code of
1863126 to AP I of 1997,127 as well as virtually all military manuals128 and
119
10 U.S.C. § 950t(27) (emphasis added).
120
Espionage is currently defined in U.S. law at 18 U.S.C. § 794, whereas the wartime
offense of spying is proscribed by the Uniform Code of Military Justice (UCMJ) at 10
U.S.C. § 906. (Espionage committed by persons subject to U.S. military law is also
addressed by the UCMJ at 10 U.S.C. § 906a).
121
See, e.g., YORAM DINSTEIN, THE CONDUCT OF HOSTILITIES UNDER THE LAW OF
INTERNATIONAL ARMED CONFLICT 210-11 (2004).
122
See generally ALEXANDER ROSE, WASHINGTON SPIES (2006).
123
See Glazier, supra note 71 at 18-22 (detailing Revolutionary War spy cases
prosecuted by the United States).
124
Bell v. U.S., 349 U.S. 81, 83 (1955).
125
This longstanding provision of customary international law was codified by the
Hague Land Warfare Regulations in 1899. See DINSTEIN, supra note Error! Bookmark
not defined. at 211.
126
Instructions for the Government of the Armies of the United States in the Field,
General Orders No. 100, Apr. 24, 1863, Art. 104, available at
treatises on the subject.129

The only substantial change to the international law governing spying
since the American Revolution was the clear repudiation of any authority to
summarily punish this offense. A formal trial has been expressly required
at least since the adoption of the Hague Land Warfare Regulations in 1899,
which explicitly proclaimed, ―A spy taken in the act cannot be punished
without previous trial.‖130 The United States was ahead of its time in this
regard. Congress first authorized spies to be tried by court-martial in
1776131 and this authorization was extended to military commissions in
1863.132 The current UCMJ continues to provide statutory authorization for
both types of tribunals to try this offense,133 with article 106 providing:
Any person who in time of war is found lurking as a spy or acting

as a spy in or about any place, vessel, or aircraft, within the control
or jurisdiction of any of the armed forces, or in or about any
shipyard, any manufacturing or industrial plant, or any other place
or institution engaged in work in aid of the prosecution of the war
by the United States, or elsewhere, shall be tried by a general
court-martial or by a military commission and on conviction shall
be punished by death. This section does not apply to a military
commission established under 47A of this title.134
But for the addition of that last sentence by the MCA, this statute might
have been used to overcome the flaw in the MCA‘s definition in at least
some cases. But with respect to Khadr it is not just the statutory definition
that is at issue. According to his charge sheet, Khadr is alleged to have
spied in June 2002 in that ―by clandestine means or while acting under false
pretenses [he] . . . conducted surveillance of U.S. forces and made notations
http://www.icrc.org/ihl.nsf/FULL/110?OpenDocument.
127
AP I, supra note 19 Art.46 ¶ 4.
128
See, e.g., U.K. MINISTRY OF DEFENCE, supra note 50 § 4.94.
129
See, e.g., DINSTEIN supra note at 212-13; LESLIE C. GREEN, THE CONTEMPORARY
LAW OF ARMED CONFLICT 120 (2000) (Green‘s treatise originated from a draft military
manual he was commissioned to prepare for the Canadian armed forces. See id. at xv.).
130
See Art. 30, Regulations concerning the Laws and Customs of War on Land, Annex
to Convention (II) with Respect to the Laws and Customs of War on Land, The Hague, 29
July 1899, available at http://www.icrc.org/ihl.nsf/FULL/150?OpenDocument (hereinafter
―Hague Regulations‖).
131
Resolution of the Continental Congress (Aug. 21, 1776), in 5 JOURNALS OF THE
AMERICAN CONGRESS 1774 to 1779 693 (1906).
132
Act of Mar. 3, 1863, An Act for enrolling and calling out the national Forces, and
for other Purposes, ch. 75, 12 Stat. 731, 737.
133
10 U.S.C. § 906.
134
10 U.S.C. § 906.
as to the number and types of vehicles, distances between the vehicles,

approximate speed of the convoy, time, and direction of the convoys.‖135
The fatal problem with the charge is that he is then accused of having
received ―one month of land mine training‖ in July, 136 effectively estopping
the government from asserting that he was captured before successfully
rejoining his own forces. The LOAC is thus entirely clear on this point –
Khadr cannot lawfully be prosecuted for this offense under the chain of
events sworn in his charge sheet as ―true to the best . . . knowledge and
belief‖ of an official in the Office of the Chief Prosecutor.137 The U.S.
government as an institution knows this as well; the Manual for Court
Martial explanation of the offense of spying specifically states that ―[a] spy
who, after rejoining the armed forces to which the spy belongs, is later
captured by the enemy incurs no responsibility for previous acts of
espionage.‖138 The same language is found in the U.S. Army‘s official
(although badly outdated in other respects) law of war manual.139
IV. CAN THE GUANTÁNAMO COMMISSIONS APPLY DOMESTIC LAW?
Given the government‘s failure to establish any valid jurisdiction over

Khadr for a valid law of war violation, it is logical to inquire as to whether
the Guantánamo commissions could apply some form of ―domestic law‖ to
punish the unprivileged belligerency that forms the effective core of most of
the defective current charges.140 This is not a wholly radical idea as past
military commissions have frequently exercised some type of domestic law
and the MCA itself asserts that it defines both ―offenses that have
traditionally been triable under the law of war‖ and offenses ―otherwise
triable by military commission.‖141
The key issue raised by such an approach is what actual law would be
invoked? While federal courts today recognize a limited federal common
law tracing back to the Supreme Court‘s famous Erie decision, the Supreme
Court has been unequivocal for two centuries that there are no federal
common law crimes.142 The Court has allowed military commissions to
135
Referred charges, supra note 3.
136
Id.
137
Id.
138
MANUAL FOR COURT MARTIAL 2008at IV-44, ¶ 30.b.(6)(b).
139
Department of the Army, The Law of Land Warfare (FM 27-10) ¶ 78.c.
140
See, e.g., John C. Dehn, The Hamdan Case and the Application of A Municipal
Offense, 7 J. INT‘L CRIM. JUST (arguing that murder in violation of the law of war can be
prosecuted by military commissions as a form of domestic law offense and thus need not
conform to the specific limits imposed by international law).
141
10 U.S.C. § 950
142
United States v. Hudson, 11 U.S. (6 Cranch) 32 (1912).
apply the customary law of war without explicit advance codification only
because it held in Ex parte Quirin that Congress implicitly adopted that
corpus juris under its authority to define and punish violations of the law of
nations:
[B]y the reference in the 15th Article of War to ‗offenders or

offenses that . . . by the law of war may be triable by such military
commissions,‘ Congress has incorporated by reference, as within
the jurisdiction of military commissions, all offenses which are
defined as such by the law of war . . . and which may
constitutionally be included within that jurisdiction. Congress had
the choice of crystallizing in permanent form and in minute detail
every offense against the law of war, or of adopting the system of
common law applied by military tribunals so far as it should be
recognized and deemed applicable by the courts. It chose the latter
course.143
It is critical to note that the Court held that this congressional authority
is sourced in the ―define and punish‖ clause, which is expressly limited to
―Piracies and Felonies committed on the high Seas, and Offenses against
the Law of Nations.‖144 Congress can thus adopt customary international
law rules in ways it is not able to do with domestic law, and there is no fair
basis for reading Quirin to suggest that there is an unwritten domestic law
that commission can apply.
It is certainly true that past commissions have applied rules that could
be considered to be ―domestic‖ laws, but these situations fall into the
second and third categories of military commission jurisdiction identified
by Winthrop. Most previous commissions, including specifically their
initial use by their creator, General Winfield Scott, during the Mexican
War, administered criminal law as an instrument of military government in
occupied territory controlled by U.S. forces. What is perhaps most
instructive about this use is that Scott himself considered it necessary to
inform those subject to American rule of the existence of these tribunals and
the conduct which they would prosecute in advance of their exercise of
authority. He accomplished this through the issuance of his famous General
Orders No. 20 and several successor orders.145 Scott‘s determination to
provide advance notice of criminal liability is now explicitly incorporated
143
Ex parte Quirin, 317 U.S. 1, 11-12 (1942).
144
U.S. CONST., art. I, § 8, cl. 10.
145
See Glazier, supra note 11 at 31-35 (documenting the Mexican War origin of the
military commission).
as a formal legal requirement in the LOAC.146

The other ―domestic‖ application of the military commission was as a
martial law court in U.S. territory, a usage repudiated by James Madison
after Andrew Jackson‘s effort at trying Louisiana legislator Louis Louallier
during the War of 1812147 and by the U.S. Supreme Court following the
Civil War148 and World War II.149 If martial law is recognized by the
Constitution at all, it almost certainly is limited to situations qualifying for
the suspension of the writ of habeas corpus, that is ―Unless when in cases of
Rebellion or Invasion the public Safety may require it.‖150
It thus seems clear that the Guantánamo commissions lack authority to
apply domestic law. The United States is not an occupying power of enemy
territory in Cuba (or anywhere else today) and martial law is not in force on
the island. Even if Congress has the constitutional authority to give an
Article I tribunal criminal jurisdiction over domestic law offenses, it would
need to do so prospectively under the principle nulla poena sine lege
enshrined in the constitutional prohibition against ex post facto laws. So it
may be possible, although beyond the scope of this article to examine
further, that any offenses defined under the MCA may be prosecuted
against offenders committing the violations after the date of its enactment.
But this authority would necessarily be lacking with respect to Omar Khadr
and any other detainees whose potentially criminal conduct was completed
before the initial MCA enactment in late 2006.
CONCLUSION
There has been substantial criticism of the Guantánamo military

commissions on the basis of their procedural shortcomings ever since
President Bush first announced his intention to employ them in November
2001. The commission procedures mandated by the MCA are a substantial
improvement over those envisioned in the immediate aftermath of 9/11
although the initial sessions of Khadr‘s trial show that there is still
substantial residual room for criticism as the rules are actually being
applied.151 But far too little attention has been paid to the larger substantive
issue of the legal validity of the basic charges. Without valid subject matter
jurisdiction over the defendant‘s alleged conduct, any trial is a legal nullity,
146
See note 19 supra and accompanying text..
147
See Glazier, supra note 11 at 24-26.
148
Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866).
149
Duncan v. Kahanamoku, 327 U.S. 304 (1946).
150
U.S. Const., art. I, § 9, cl. 2.
151
Charlie Savage, U.S. Wary of Example Set by Tribunal Case, N.Y. TIMES, Aug. 27,
2010 available at http://www.nytimes.com/2010/08/28/us/28gitmo.html
and the procedure thus wholly irrelevant.

The Guantánamo trials must be legally grounded in the LOAC or else
they constitute an impermissible ex post facto application of law enacted
well after the defendants were in custody. Yet despite the fact that he faces
five separate charges, the specifications lodged against Canadian defendant
Omar Khadr either fail to state a recognized violation of the law of war, or
where the offense is facially valid, the specific conduct charged does not
meet the law‘s definition of the crime. 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
while the analysis in this article has focused on the specific application of
these rules to Khadr, it is important to note that the problematic charges of
conspiracy and providing material support to terrorism are the only offenses
involved in three of the four trials completed to date, suggesting the real
possibility of reversal when any of these cases finally get to the civilian
appellate review process.152
This analysis is not intended to excuse Khadr‘s actions. Although there
is some reason to question the validity of prosecuting conduct committed by
a 15 year-old under the modern LOAC,153 this article takes no position on
that issue, nor is it necessary to address it, since Khadr‘s prosecution does
not comport with the law of war regardless of his age. If the government
thinks it is appropriate to prosecute this defendant for his acts in association
with al Qaeda, it is free to do so under any applicable provisions of either
U.S. or Afghan domestic law, following whatever rules those codes and
international human rights law provide for dealing with youthful offenders.
Attorney General Eric Holder has emphasized the importance of U.S.
adherence to the rule of law in these cases:
Let me be clear – we cannot and need not sacrifice our core values
in order to ensure our safety. Adherence to the rule of law
152
David Hicks pleaded guilty only to providing material support to terrorism.
Department of Defense, Detainee Convicted of Terrorism Charge at Guantánamo Trial,
Mar. 30, 2007 at http://www.defense.gov/releases/release.aspx?releaseid=10678. Salim
Ahmed Hamdan was convicted of providing material support but acquitted of conspiracy.
Department of Defense, Detainee Convicted of Terrorism Charge at Military Commission
Trial, Aug. 6, 2008 at http://www.defense.gov/releases/release.aspx?releaseid=12118. Ali
Hamza Ahmad Suliman al Bahlul was convicted of conspiracy and solicitation to commit
murder. Department of Defense, Detainee Convicted of Terrorism Charge at Military
Commission Trial, Nov. 3, 2008 at http://www.defense.gov/releases/release.aspx?
releaseid=12329. Ibrahim Ahmed Mahmoud al Qosi pleaded guilty to conspiracy and
providing material support to terrorism. Department of Defense, Al Qosi Sentence
Announced at http://www.defense.gov/releases/release.aspx?releaseid=13792.
153
For a contrasting view, see John D. Altenburg, Jr, Just Three Mistakes, 42 CASE W.
J. INT‘L L 11, 14-15 (2009).
strengthens our security by depriving terrorist organizations of

their prime recruiting tools and legitimacy. When we commit to
operating within a Constitutional framework, we distinguish
ourselves from the enemy we are acting to defeat. We have to lead
not only by overwhelming strength, but also by good example. A
few seem to have forgotten what, to me, is this most basic of
American values and have lost touch with what truly distinguishes
us as a nation.154
It is long past time for the government to conform its ―war on terror‖
prosecutions to the rule of law.
154
Eric Holder, U.S. Att‘y Gen, Remarks at the University of Maine‘s William S.
Cohen Lecture Series (Oct. 23, 2009) available at:
http://www.usdoj.gov/ag/speeches/2009/ag-speech-091023.html

A Critical Assessment of The Military Commission Charges Against Omar Khadr

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Legal Studies Paper No.

Professor David Glazier

Electronic copy available at: http://ssrn.com/abstract=1669946

A COURT WITHOUT JURISDICTION: A CRITICAL ASSESSMENT OF

Twenty-three year-old Canadian citizen Omar Khadr has been one of

Electronic copy available at: http://ssrn.com/abstract=1669946

I. THE LEGAL BASIS FOR MILITARY COMMISSION JURISDICTION

Congress formally sanctioned treating the 9/11 attacks as an act of war

Electronic copy available at: http://ssrn.com/abstract=1669946

Congress and secured statutory authorization for the Guantánamo trials in

II. CONSTRAINTS ON JURISDICTION AUTHORIZED BY THE MCA

A fundamental challenge for subject matter jurisdiction under the MCA

are declaratory of customary international law, including Article 75,20 a

Geneva Conventions.25 (Grave breaches of the Geneva Conventions are

The provisions of this subchapter codify offenses that have

The political branches simply saying something is so cannot, of course,

III. ANALYSIS OF THE CHARGES LEVIED AGAINST OMAR KHADR

Khadr is being tried on five separate charges, although it will be seen

(1) Murder in Violation of the Law of War

An analysis of the problematic issues with each of these charges as

A. Murder in Violation of the Law of War

(15) MURDER IN VIOLATION OF THE LAW OF WAR.—Any

Assuming Khadr did kill a U.S. soldier—a privileged belligerent48—in

because they have never been legitimate participants in hostilities, or

When an otherwise lawful combatant subject to the LOAC commits one

(1) Individuals of the enemy’s army who have been guilty of

Since al Qaeda personnel largely fail to have fixed distinctive emblems

provides an express ‗right‘ to directly participate in hostilities only

This theoretical understanding is supported by evidence of historical

back. This approach repudiates the functional equivalence between the

(1) One or more persons are dead;

B. Attempted Murder in Violation of the Law of War

The second charge preferred against Khadr is ―Attempted Murder in

attempts to commit any offense punishable by this chapter shall be

Again there is nothing facially problematic with this language, but

(29) CONSPIRACY.—Any person subject to this chapter who

Although this definition appears quite reasonable to those schooled in

is far from universally recognized.99 Indeed, the idea that conspiracy to

D. Providing Material Support to Terrorism

The fourth charge against Khadr, ―providing material support to

(25) PROVIDING MATERIAL SUPPORT FOR TERRORISM.—

A full appreciation of the offense can thus only be gleaned from

(24) TERRORISM.—Any person subject to this chapter who

than death, as a military commission under this chapter may

Finally, the MCA offense of providing material support adopts the

(1) the term ―material support or resources‖ means any

Despite the widespread use of what could effectively be categorized as

the LOAC in response, it became a crime for any individual to provide it

(27) SPYING.—Any person subject to this chapter who, in

commission under this chapter may direct.119

Although the term ―spy‖ is colloquially applied to those engaging in

treatises on the subject.129

Any person who in time of war is found lurking as a spy or acting

as to the number and types of vehicles, distances between the vehicles,

IV. CAN THE GUANTÁNAMO COMMISSIONS APPLY DOMESTIC LAW?

Given the government‘s failure to establish any valid jurisdiction over

[B]y the reference in the 15th Article of War to ‗offenders or

as a formal legal requirement in the LOAC.146

There has been substantial criticism of the Guantánamo military

and the procedure thus wholly irrelevant.

strengthens our security by depriving terrorist organizations of

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