A Terrorist We Should Have Prosecuted
Andy McCarthy makes a good point over at The Corner about Laith al-Khazali, a member of a Shiite militant group responsible for the deaths of American troops in Iraq. Al-Khazali has been released, allegedly as part of negotiations with terrorists holding British hostages. Senators Sessions and Kyl have questioned this action in a letter to President Obama.
McCarthy lays out the facts on al-Khazali here. Al-Khazali participated in a sophisticated attack on American troops in Karbala. The militants wore American uniforms and took American soldiers hostage. After leaving the site of the attack, the militants executed their prisoners.
Though I have disagreed with McCarthy on other issues, he makes a valid point here.
Al-Khazali is guilty of honest-to-goodness war crimes.
Wearing an enemy’s uniform for infiltration is permissible. Wearing an enemy’s uniform while shooting at them is perfidy, a prosecutable war crime.
Otto Skorzeny, head Nazi commando, was acquitted of perfidy after World War II. Skorzeny’s men had infiltrated American lines during the Battle of the Bulge while wearing American uniforms. They avoided firing at American troops while in our uniforms, though in two instances fired at American troops in self-defense. British commando Forest Frederick Edward Yeo-Thomas testified for the defense, saying that he had infiltrated German lines in a German uniform. W. Hays Parks provides an excellent discussion of special operations soldiers’ use of non-standard uniform and the legal boundaries of this issue here. Al-Khazali crossed the line by wearing an American uniform while firing at our soldiers.
Killing enemy soldiers after they are in your custody is also a prosecutable war crime. We prosecuted German soldiers for doing this in the Malmedy Massacre, and have prosecuted our own soldiers for killing prisoners. We have even prosecuted contractors for killing prisoners on the battlefield and during interrogation.
Al-Khazali deserves to be brought to justice. It is a shame we did not provide it.
Filed under: Foreign Policy and National Security; Law and Civil Liberties
“There Is No Gain to Keep Them”
Thus explained Khmer Rouge apparatchiks on why children of perceived regime enemies were killed.
In the midst of America’s political and economic mess, it is worth remembering how blessed we are and how deep humanity can fall. Cambodia is in the process of trying the former commandant of Tuol Sleng, a prison that specialized in torture and murder, and from which only a handful of prisoners emerged alive.
The Khmer Rouge regime of the 1970s killed babies and toddlers — sometimes by holding their legs and smashing their heads against trees — so they would not seek revenge later in life, the group’s former chief jailer said Monday.
Kaing Guek Eav, alias Duch, commanded the Khmer Rouge’s notorious S-21 prison, where as many as 16,000 men, women and children are believed to have been tortured before being sent to their deaths.
Duch, 66, is being tried by a U.N.-assisted genocide tribunal for crimes against humanity, war crimes, murder and torture. An estimated 1.7 million Cambodians died under the 1975-79 communist Khmer Rouge regime from forced labor, starvation, medical neglect and executions.
…
Duch recounted a Khmer Rouge policy on detained children: “There is no gain to keep them, and they might take revenge on you,” which he said was told to him by the regime’s former defense minister, Son Sen.
Today Tuol Sleng is a museum. I visited it several years ago, along with the “killing fields,” in which thousands of the Khmer Rouge’s victims were buried. Seeing the former prison is an experience simultaneously moving, sobering, chilling, and depressing. It offers a tragic reminder of the horrors that result when sinful human beings take control of powerful state institutions and seek to remake society. No wonder liberty is so precious.
Filed under: Foreign Policy and National Security; Government and Politics
Obama’s Military Commissions
President Obama is expected to announce how his administration is going to prosecute prisoners for war crimes and perhaps other terrorist offenses. Instead of civilian court, courts-martial, or new “national security courts,” Obama has apparently decided to embrace George W. Bush’s system of special military tribunals, but with some “modifications.”
Glenn Greenwald slams Obama for seeking to create a “gentler” tribunal system and urges liberals to hold Obama to the same standards that were applied to Bush:
What makes military commissions so pernicious is that they signal that anytime the government wants to imprison people but can’t obtain convictions under our normal system of justice, we’ll just create a brand new system that diminishes due process just enough to ensure that the government wins. It tells the world that we don’t trust our own justice system, that we’re willing to use sham trials to imprison people for life or even execute them, and that what Bush did in perverting American justice was not fundamentally or radically wrong, but just was in need of a little tweaking. Along with warrantless eavesdropping, indefinite detention, extreme secrecy doctrines, concealment of torture evidence, rendition, and blocking judicial review of executive lawbreaking, one can now add Bush’s military commission system, albeit in modified form, to the growing list of despised Bush Terrorism policies that are now policies of Barack Obama.
Greenwald is right. The primary issue is not due process. The tribunals might ultimately be “fair” and “unbiased” in some broad sense, but where in the Constitution does it say that the president (or Congress) can create a newfangled court system to prosecute, incarcerate, and execute prisoners?
For more about how Bush’s prisoner policies ought to be ravamped, see my chapter “Civil Liberties and Terrorism” (pdf) in the Cato Handbook for Policymakers.
Cato on Facebook
Cato on Twitter
Cato on YouTube
Cato Tweets