How prosecuting Gitmo internees could boomerang against us

More Problems with Khadr Prosecution
[Via Dispatches from the Culture Wars]

Of all the various cases that may see military tribunals for detainees, the case of Omar Khadr may be the most difficult, both practically and morally. Khadr, a Canadian citizen, was only 15 years old when he was arrested for allegedly throwing a grenade at American troops, killing one and injuring several others. And it is clear now that he his interrogations included a good deal of abuse and coercion, if not outright torture.

Spencer Ackerman and Daphne Eviatar have already been at the Khadr tribunal and reported some of the many problems there as the military courts try to figure out a new set of rules that wasn’t even completed until the trial began. But now Scott Horton points out more problems in that set of rules that could scuttle the whole thing.


This post discusses something I had not heard before – the drones that have attacked and killed people in Pakistan, and other places, are not operated by military personnel but by civilian contractors. But the military law we are using to prosecute some of those being held in Gitmo –such as Khadr, who at 15 in 2002 threw a grenade that killed an American soldier – could just as easily be applied to these civilian contractors.

Khadr was not authorized under the laws of war to use lethal force. But then, it appears that the same definition may also applies to civilian contractors.

From the Harper’s article:

I recently discussed Koh’s attempt to justify the use of drones for targeted killings. I noted that Koh had failed to address an obvious legal issue—that the drones were being operated by civilian contractors, not uniformed military personnel who are privileged to used lethal force under the law of war. The drone warfare raises the same issue that the Khadr prosecution does: if the operators of these systems are not privileged to use lethal force, are they committing a crime under the law of war when they do so? The language adopted in the manual for military commissions argues that they are, but the position taken by the State Department to justify the use of drones assumes the opposite. These positions are difficult to reconcile.

There are all sorts of laws regarding war, who is allowed to fight and who is not. It gets awfully sketchy when we try a teenager who threw a grenade because he was not a lawful combatant but we allow our own civilians to do similar things, just with higher levels of technology. I’m sure there are all sorts of ways to try to make this seem like completely different things – Lawyers love semantics. – but it does not really pass the smell test.

It is a peculiar sort of law that can result in severe penalties when done against us (Khadr has been locked up for 8 years – but is perfectly OK when we do it to others. It actually seems to be a sort of un-American style of law. It is interesting that it is the Canadian press that is discussing this.

It may well be that if we prosecute Khadr, the same law could be used against our own civilians who carry out military missions. Of course, it begs the question – why are civilians responsible for our military actions? Why do we continue to allow that?