This is a link to an op-ed published in the Salt Lake Tribune, June 21, 2008 and to be published in the East Valley Tribune, June 22, 2008 that I have co-authored with Dan Barr of Perkins Coie Brown and Bain proposing the establishment of a US domestic terror court. The proposal, based on my testimony earlier this month before the Senate Judiciary Committee, is written in light of the Supreme Court’s decision in Boumediene.
The BBC “The World” (radio broadcast) has reported that ICC Chief Prosecutor Luis Moreno-Ocampo will begin filing indictments against several top Sudanese Government officials next month, accusing the entire government of playing a role in crimes against civilians in Darfur.
To date the highest level official to be indicted is Ahmed Muhammed Haroon, former Interior Minister. Rather than surrender Haroon, the Sudanese regime promoted him to Minister for Humanitarian Affairs, where he was placed in charge of the very refugees that he and his troops had assaulted and terrorized.
The BBC “The World” (radio broadcast) has reported that ICC Chief Prosecutor Luis Moreno-Ocampo will begin filing indictments against several top Sudanese Government officials next month, accusing the entire government of playing a role in crimes against civilians in Darfur.
To date the highest level official to be indicted is Ahmed Muhammed Haroon, former Interior Minister. Rather than surrender Haroon, the Sudanese regime promoted him to Minister for Humanitarian Affairs, where he was placed in charge of the very refugees that he and his troops had assaulted and terrorized.
The Appeals Chamber of the Special Court for Sierra Leone recently ruled that forced marriage is a new category of crime against humanity, reversing the Trial Chamber’s determination that forced marriage was not distinct from the previously recognized crimes against humanity of rape, forced prostitution, and sexual slavery.
“What had occurred here with forced marriage was something very serious and very specific, and wasn’t fully recognized,” Stephen Rapp, the chief prosecutor at the Special Court for Sierra Leone, told the Christian Science Monitor last week. “It was part of a widespread attack against civilians. Women were being taken as wives without consent, either consent by them … or by family members.” See http://www.csmonitor.com/2008/0610/p06s01-woaf.html
The court’s first rulings on the charges, brought against three members of the notorious Revolutionary United Front, are expected in July.The decision paves the way for similar charges in northern Uganda and the Democratic Republic of Congo, where rights groups have documented the use of bush wives in ongoing conflicts.
In arguing the case for recognizing forced marriage as a new category of crime against humanity, the Prosecutor of the Special Court for Sierra Leone utilized a memorandum prepared by the Case Western Reserve University School of Law War Crimes Research Office, which I direct.The memo was subsequently published as Michael P. Scharf and Suzanne Matler, Forced Marriage: Exploring the Viability of the Special Court for Sierra Leone’s New CrimeAgainst Humanity, Volume 3 of the Africa Legal Aid Special Book Series:“African Perspectives on International Criminal Justice” (2005), the text of which is available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=824291 .
I have been invited to testify before the Senate Judiciary Committee in a hearing on June 4, 2008, entitled “Improving Detainee Policy: Handling Terrorism Detainees within the American Justice System.” I will testify regarding my proposal advocating the establishment of a domestic terror court in the US.
To watch the Senate Judiciary Committee hearings on Wednesday, June 4, open wwww.CapitolHearings.org
Click on Room number Dirksen 226 from the scrolling list to the right of the screen to begin streaming audio.
The executive summary of my testimony appears below. Click here to read the full text of the prepared testimony.
Improving Detainee Policy: Handling Terrorism Detainees within the American Justice System
(Executive Summary)
Considering how to handle terror detainees within the American justice system, there are three forum options: (1) treaty-based international terror courts, (2) traditional Article III courts, and (3) a hybrid option which I call “domestic terror courts.” This testimony discusses the feasibility of each forum and recommends domestic terror courts as the practical solution to detainee policy, as a legal regime for the trials of those detained post-9/11.
In response to the Supreme Court decision, Hamdan v Rumsfeld, 126 S.Ct. 2749 (2006), I have developed a model that enables the trying of terrorists while meeting judicial scrutiny by drawing on certain elements of the criminal law process. Incorporating elements of the American criminal law and criminal procedure paradigm, and drawing on the Israeli two-tiered system for the trying of terrorists, this testimony offers the forum of the domestic terror courts as a concrete recommendation for how to handle detainees post-Hamdan.
Furthermore, the testimony addresses the limits of the applicability of the criminal law process, particularly with respect to the right of detainees to confront their accusers. Detainee trials are largely based on intelligence sources whose identity cannot be disclosed. The lack of disclosure prevents full implementation of the Sixth Amendment confrontation clause.
Ultimately, my model balances the defendant’s basic rights with equally legitimate national security considerations. Therefore, the domestic terror court option is the most practical and expedient policy solution, necessitated by an untenable tension between the understanding that some of the detainees present a genuine threat to American national security, and awareness that indefinite detention violates constitutional principles and fundamental concepts of morality.
On June 24, 2007, the Iraqi High Tribunal handed down its decision in the Anfal Campaign trial, convicting “Chemical Ali” (Ali Hassan al-Majid) and five other high ranking military leaders of the former Iraqi Regime of international crimes related to their roles in a 1980s crackdown against northern Iraqi Kurds (English version of Judgment available at http://law.case.edu/grotian-moment-blog/anfal/opinion.asp . On Tuesday, January 29, 2008, Case Western Reserve University School of Law hosted a two-hour live presentation by the President/Chief Appeals Judge of the Iraqi High Tribunal, the five judges who presided over the Anfal Campaign trial, and the Prosecutor who tried the case. This trip to the United States marked their first public appearance outside of Iraq. Through a translator, the Judges and Prosecutor discussed the challenges that they faced, the precedent that their historic judgment sets, and the question of whether the proceedings were fair. They also discussed the controversy surrounding the pending execution of “Chemical Ali” — an issue that has been front page news this week. To view the transcript of this extraordinary session (including Q&A) on the Grotian Moment Blog, click on: http://law.case.edu/grotian-moment-blog/content.asp?t=1&id=141
In response to President Bush’s decision to veto legislation outlawing waterboarding, Daniel C. Barr (Perkins Coie Brown & Bain) and I wrote this op-ed, Veto of Bill Banning Torture Places Interrogators in a Bind, published in today’s Salt Lake Tribune.
Abstract:
Despite the fact that six years have passed since 9/11, the Pentagon’s recent decision to try six Guantanamo detainees for capital crimes such as terrorism and support of terrorism made national headlines. William Glaberson, U.S. Charges 6 With Key Roles in 9/11 Attacks, N.Y. Times, Feb. 11, 2008, at A1. In this Debate, Professors Amos N. Guiora, of the University of Utah, and John T. Parry, of Lewis & Clark Law School, attempt to settle the question of what sort of forum is most appropriate to try the thousands of individuals in U.S. custody who are suspected of terrorism.
Professor Guiora considers three forum options: treaty-based international terror courts, traditional Article III courts, and a hybrid option he calls domestic terror courts. Ultimately, Professor Guiora argues in favor of domestic terror courts, which he describes as being able to balance the legitimate rights of the individual with the equally legitimate national security rights of the state. He considers this option to be the most practical and expedient policy solution, necessitated by an untenable tension between the understanding that some of the detainees present a genuine threat to American national security, and an awareness that indefinite detention violates constitutional principles and fundamental concepts of morality.
Professor Parry agrees that current U.S. policy toward detainees has been misguided, but does not believe that innovations of the sort proposed by Professor Guiora are necessary. Rather, he suggests that policymakers should choose Article III courts rather than hybrid courts for trials of suspected terrorists, with military courts as a fallback option. Professor Parry points to research that shows that the federal government is often able to prosecute suspected terrorists in federal court, and therefore considers alternative proposals to Article III courts to be solution[s] in search of a problem. Professor Parry realizes that trial in federal court will not be possible for every suspected terrorist, and concludes that, [f]or people who pose a risk but whose conduct may not violate federal criminal law, prolonged preventive detention is the best choice.
Murder, attempted murder, material support, conspiracy and spying are the charges against Omar Khadr who recently faced a military commission which heard challenges to its jurisdiction. I’ve previously blogged in detail about those charges here. As I’ve previously noted, Khadr comes from a dedicated al Qaeda family, with a family tradition of terrorism. Abdurahman Khadr, Omar’s brother boldly stated “I admit it that we are an al-Qaeda family. We had connections to al-Qaeda.” and later revealed that he had been “raised to become a suicide bomber.”
Khadr’s father Ahmad was killed in a targeted missile strike(others say in a shootout) in Pakistan. Prior to his death, Ahmad Khadr was a long time member of al Qaeda and rose to the highest levels of the al Qaeda terrorist network, commanding a region of Logar per the direct orders of Osama Bin Laden. Ahmad Khadr contributed to al Qaeda in the form of financial support and personnel assistance to further the organization’s international terrorism objectives. In particular, he encouraged his sons to join al Qaed and to carry out its work. The recently released “Book of 120 Martyrs” an al Qaeda recruiting tool states that Khadr married a Palestinian who “shared with him his march to jihad, and Allah granted them several sons who shared this long, tiresome march with him.” Omar Khadr heeded his father’s call.
Omar Khadr and his family made yearly trips to the bin Laden compound in Jalalabad Afghanistan, meeting with bin Laden, Al-Zawahiri, and other senior leaders. Khadr, not only met with senior leadership, he also attended various training camps learning the tradecraft of an international terrorist. He was trained to use rocket propelled grenades, rifles, pistols, hand grenades and explosives. He is alleged to have put his skills to use converting land mines to IED’s, planting IED’s along U.S. military routes of travel, and conducting surveillance against U.S. forces in preparation for future attacks.
In fact recently released footage shows Khadr making and emplacing an IED.
Also, footage from Iraq, gives us an idea of the other type of al Qaeda training which Khadr was likely to have gone through (Hat tip to BlackFive). That training shows children learning kidnapping and assasination, the type of conduct for which we wouldn’t hesitate to try a minor as an adult for in a domestic court.
Of course as readers know, Khadr concluded his al Qaeda tour of duty in a firefight on July 27, 2002, where he threw a grenade killing Sergeant First Class Christopher Speer of the 3rd Special Forces Group and partially blinding Sergeant First Class Layne Morris. In the firefight Khadr was shot four times by U.S. forces who then stepped over the bodies of their comrades to save his life. He was detained, provided medical treatment and sent to Guantanamo.
Khadr’s attorney’s make the argument that he was entitled to kill Sergeant Speer because Speer was a lawful target, and Khadr’s actions were not a war crime at the time he commited them. Furthemore, Defense lawyers and a UN representative have argued that if the U.S. tries Khadr, it will be a violation of the Optional Protocol to the UN Convention on the Rights of the Child, points which Colonel Davis, the former Chief Prosecutor took issue with in the comments here. Davis states:
1) The issue the protocol and lists of countries stating opposition to the recruitment of child soldiers does not speak to their conduct, it speaks to bans on recruitment.
2) Article 37(a) of the Convention on the Rights of the Child places limits on punishment, not prosecution.
3) The U.N. sanctioned Special Court for Sierra Leone’s Statue in Article 7 allowed for jurisdiction over persons 15 years of age.
Abstract:
Unlike traditional war in which soldiers fought soldiers and tanks attacked tanks, the “unseen enemy in the dark shadows of the back alleys” characterizes the post 9/11 world. Commanders are facing many challenges targeting battlefield combatants. What increasingly complicates the battlefield commanders’ dilemma in determining the status of the individual standing before him is what we describe and define in the article as “voluntary human shields”. Commanders are faced with many decision points once terrorist organizations or enemy forces introduce human shields into the equation. Battlefield commanders must determine whether the human shield is friend, foe, or innocent bystander. After making this determination, the commander then must consider the impact of potential civilian casualties or the perception that civilian casualties occurred. These decisions often have to be made by the commander on the ground with little to no time to contemplate the pros and cons of the decision.
We have chosen to address this issue for multiple reasons: commanders demand clear criteria regarding the status of those in the “zone of combat”; the innocent civilian must be protected; international law demands the soldier be trained in distinguishing between the innocent and non-innocent and the community supporting terrorist organizations must know that the truly innocent will be protected (to the greatest extent possible). The security of those individuals on the battlefield depends on the analysis of the commander. The commander must assess the security rights of the individuals on the field of battle (guided by international humanitarian law) versus the security of the soldiers he commands and the security of the state he represents. The commander needs tools to toss into his proverbial pack to take with him on the battlefield. In the article, we assert the “tools” must consist, at a minimum, of the following factors: 1) intelligence information; 2) analysis of the conduct of the specific individual; 3) battlefield circumstances at the relevant time; 4) the commanders’ prior experience; 5) the conduct of additional individuals in the surrounding area. Senior military commanders, policy and decision makers, academics, the general public and those supporting terrorists must address this issue. Otherwise, the killing of innocent civilians is as inevitable as the tragic death of a soldier unequipped to determine “who is the enemy”.
The AIDP is the oldest association of criminal law specialists in the world and one of the oldest scientific associations. This blog serves as a discussion site for all things law, with a focus upon criminal law, comparative criminal justice, international criminal law, international humanitarian law, war crimes, international criminal tribunals, human rights and counterterrorism law & policy.
er 
