There has been some recent coverage concerning the implications for the Khadr conviction of the DC Circuit Court's Hamdan II case. Some of that discussion concerns the plea agreement, and whether procedurally it is amenable to challenge.
Here, though, I confine discussion to whether the substantive crimes to which Khadr pleaded guilty could be sustained if one applies the logic of the DC Circuit.
That decision suggests everything hinges on whether in 2002, when the events in the case arose, Khadr's conduct amounted to a violation of the laws of war. It they did not fall within this category, then the 2007 charges against Khadr represent ex post facto justice and, presumptively, are unconstitutional.
Violations of the Laws of War
This “violation of the laws of war” is the standard existing in US law circa 2002, as I understand it. Up until 2006 there was some imprecision in US law as to what was included in these violations of the laws of war. But the DC Circuit majority suggests that the proper test is whether the act was proscribed by the international laws of war, and specifically whether it was a war crime.
Still, I suppose there is room for quibbling. Setting aside any jurisprudence on the question, a statute that allows prosecutions for "violations of the laws of war" need not confine those prosecutions only to those acts that reach an outright war crime. There are other violations that are not war crimes, but are still contrary to the laws of war. War crimes are basically only the most serious breaches, and they are a subset of the laws of war.
On balance, however, the US jurisprudence in relation to the standard existing in 2002 seems not to make this fine distinction, and does look for internationally recognized war crimes. This seems to be the lesson of the United States Supreme Court case in Hamdan I.
So everything hinges on whether the acts committed by Khadr were war crimes at the time they occurred.
The Khadr Charge Sheet
Those crimes are:
Murder and attempted murder in violation of the laws of war: Being an unprivileged combatant (in this case a civilian/insurgent directly participating in hostilities in a non-international conflict) is not, under the international laws of war, itself a war crime. Khadr could be prosecuted for murder per se under the domestic law of Afghanistan or the United States, assuming the latter reached events in Afghanistan. That is true because he does not enjoy what is known as combatants' immunity from prosecution for using violence. There is no such immunity for an insurgent. But it is not correct to say that murder by someone who is an unprivileged belligerent is elevated to the level of a war crime.
In Hamdan I, Justice Stevens actually commented on the concept of "murder in violation of the law of war", noting that it reflected "a species of compound offense of the type tried by the hybrid military commissions of the Civil War. It is not a stand-alone offense against the law of war."
This seems to make the discussion fairly open and shut: not a war crime, and therefore not available to govern the acts of Khadr in 2002 under the US law then applicable.
And even if we accepted that violation of the law of war extended to other, non-war crime violations, there is no separate international concept of murder that could apply here. I can imagine an argument that for a civilian to participate directly in hostilities dashes the expectations of the laws of war, and is not in accordance with the laws of war in the broadest sense. (In the result, such a person should not be able to rely on the armed conflict exception in Canada's anti-terrorism law, a point I have made before).
But direct participation in hostilities is not strictly speaking a "violation" of the laws of war. That is because the law does not so much proscribe it as simply impose a change of status from protected person to legitimate military target when a civilian takes up arms in this manner. (Thank you to my colleague John Currie for thinking this through with me, although he is not responsible for whatever inanities I spout in this posting).
So bottom line: under the Hamdan II theory, this charge does not stick.
Conspiracy and material support of terrorism: These acts are also not war crimes. A plurality in Hamdan I dispensed with the idea of conspiracy as an internationally recognized war crime. In Hamdan II, the DC Circuit quite expressly and correctly concluded that material support of terrorism is not a war crime. So these charges too seem vulnerable.
Spying: Ah, but here's the rub. This offence is more solid. It may not be a war crime per se, but it is clear that spies can be prosecuted under the laws of war. And in this instance, there appeared to be a self-standing spying offence on the US law books in 2002. So here, the analysis departs from that in Hamdan II. Spying may not be a violation of the laws of war. (It may be prosecuted and the spy is not entitled to prisoner of war status, but spying is not outlawed per se by the laws of war). But it was a crime under US law, and therefore there is no ex post facto crime issue.
One question is if the existing US spying law reached extraterritorially. On a quick look through the US materials, I think the answer is yes. But I can hardly claim to have made a definitive assessment of the question.
So in sum, some sizable portion of the charges to which Khadr pleaded guilty may have been unconstitutionally retroactive crimes.
And the problems caused by Hamdan II constitute yet another example of blowback from the Bush administration's insistence on concocting a sui generis system rather than building on existing systems of law. On that issue, there is no doubt whatsoever that Khadr could be prosecuted for murder. He was not a privileged combatant. But by concocting a special military commission system to prosecute war crimes and then squeezing into that category charges for crimes that patently were not war crimes, the US government opted for a house of cards.
In the end, whether this means much for Khadr will depend on whether he pursues an appeal in the US, overcomes the bar on that appeal in his plea agreement, and prevails.
I know precisely nothing about US procedure in this area. But in principle, I could see a court persuaded to vacate a plea agreement that promises no appeal of crimes that later turn out to be prima face unconstitutional. But then, the spying charge is probably sound. So whatever appeal is allowed may not be a full appeal -- and that may be enough to make any success for Khadr a pyrrhic victory at best.
And now events will prove me completely wrong, like usual.