Gabor Rona on Omar Khadr

Gabor Rona of Human Rights First writes in with the following comments in response to my brief post of yesterday directing readers' attentions to Captain Patrick McCarthy's testimony at Khadr's sentencing:

I want to try to bring some additional balance to your attempt to bring some balance on the subject of Omar Khadr. 

I check my views about "the other" by hypothetically turning the tables. What label would be appropriate for a 15 year old American kid who takes it upon himself to violently defend against the Taliban who are conducting house to house raids searching for insurgents in, say, Alexandria, Virginia?

First, if you call that kid a terrorist, you would simply be mistaken. Although there is no settled international legal definition of terrorism, it most certainly does not include targeting legitimate military objectives in an armed conflict.

Second, if the Taliban called him a murderer because he's been convicted of murder in violation of the laws of war in a Taliban military commission, I suspect you'd be complaining, as I am now, that targeting a legitimate military objective in armed conflict is not only not terrorism, it's not a violation of the laws of war, let alone murder in violation thereof. That's because civilian participation in hostilities in armed conflict is not a violation of the laws of war.

Third, if the basis of his conviction is that he's an "unlawful combatant," I suspect you'd be complaining, as I am now, that there's no such thing in the laws of war, for the same reason the act is neither terrorism nor murder in violation of the laws of war. If the Taliban legal advisor were clever enough to cite Quirin, which uses the term "unlawful combatant," you would reply, as I do now, that the Quirin court was talking about the defendants' conduct, not their status. The Quirin defendants were, in fact, members of the German armed forces, in other words, combatants plain and simple. It was their acts of perfidy that, in the accurate words of the court, made their belligerency unlawful, not that they were civilians participating in hostilities.

Fourth, you might also point to the humane international consensus that "child soldiers" should be rehabilitated, rather than put on trial. This is even the case when children are rightly suspected of committing atrocities against civilians, which is kind of an obvious added fact, because merely being a child soldier and doing what soldiers are legally entitled to do under the laws of war, is not a violation of the laws of war.

And one more thing you might note is that in a world governed by the rule of law, a criminal conviction based on a plea bargain should be voluntary. Would you say that the voluntariness requirement is met when that American kid faces the option of pleading guilty in return for a defined sentence, or going to trial and being held indefinitely (until the Taliban agree that the U.S. is no longer engaged in terrorism) even if found not guilty? I would hope not.

I do commend you for noting that Khadr was just a kid. In fact, he was a kid from a Canadian family notorious for its dedication to violent jihad - a fact that could either be a ground for mitigation, or for considering him incorrigible. I think it is both humane and wise of you to note that someone who knows Omar Khadr i(Capt. McCarthy) is better placed to make that call than someone who does not (Mr. Jocelyn).

But to call Khadr a murderer and terrorist is simply to wittingly, or unwittingly, buy in to the many layers of legal mythology about the laws of war put in motion by the misguided lawyers for the Bush administration. None of this is meant to endorse Omar Khadr's conduct, but his American counterpart would not, I suspect, be labeled a murderer and terrorist, but rather, a hero and patriot.

One quick thought in response. Rona's table-turning analogy is not quite apt.

Khadr is not a good parallel to a 15-year-old American kid defending Alexandria VA against the Taliban. For that analogy to work, you'd have to hypothesize, say, a kid from Canada who traveled with his family to Alexandria years before the Taliban ever invaded the United States to join an existing terrorist group there. To make the situation truly parallel, you'd also have to imagine that this terrorist group was devoted not to defending Alexandria from Taliban invasion but to killing Afghan civilians in Afghanistan. You'd have to imagine that the kid spent nearly five years as a child hobnobbing with the leadership of this terrorist group, visiting training camps and safe houses, and ultimately taking a lot of training himself (See paragraphs 13-23 of Khadr's stipulation of fact). You'd have to imagine that then the Taliban showed up, and this kid joined an explosive making cell run by an affiliated foreign terrorist organizations, and that he made IEDs to use against invading Talban forces (see paragraphs 24-29). You'd have to imagine that this kid considered his activity killing Afghans under the auspices of a terrorist organization devoted to killing Afghans to be terrorism (see paragraph 30). And you'd also have to imagine that in the confrontation in which he finally killed an invading Taliban soldier, the Taliban had given everyone a chance to surrender and had specifically evacuated the women and children from the compound---and that he had voluntarily stayed with the fighting men (see paragraphs 37-40). That scenario, ridiculous as it is, would be the accurate table-turner.

And were those the facts, I think the answers to Gabor's central point would be pretty easy: To put the matter simply, I don't think it would be unreasonable to describe that kid as a terrorist and a murderer. A kid who grew up amongst the leadership of a terrorist organization devoted to killing Afghan civilians, who knowingly took training from that organization and joined in its activities, who took pleasure and pride in those activities, and who considered himself to be a terrorist would seem to me to be a terrorist. And if the Taliban wanted to consider his lethal attacks on their personnel to be unprivileged and thus ripe for criminal prosecution, I'm not sure I could muster an argument against that. If the Taliban then conducted an open trial of the sort that led to Khadr's conviction, the record of which is public and the proceedings of which seem to me to have been professional and fair, I don't think I could muster an argument for that kid---other, that is, than the argument I, in fact, mustered for Khadr: That he was a kid, that kids are different, and that we should be careful always before assuming that a kid is not capable of growth or redemption.

Gabor makes other arguments too---that civilian participation in hostilities is not a crime, and that no plea in a military commission should be considered voluntary---and I may address them separately. My point here, however, is just that his analogy is facile. And if you imagine a truly apt table-turning case, the U.S. position with respect to Khadr no longer seems like it lacks a neutral international principle behind it. It seems, at least in my judgment, pretty reasonable.