A Court Without Jurisdiction: A Critical Assessment of the Military Commission Charges Against Omar Khadr

Abstract

This analysis, extracted from a larger work in progress examining the overall legal issues with the Obama administration’s military commissions, focuses on the validity of the charges levied against twenty-three year-old Canadian citizen Omar Khadr. Although most public criticism has been directed at procedural shortcomings, the commissions’ substantive law issues are more significant. Even if Khadr did everything alleged, none of the five charges as actually lodged describes a criminal violation of the law of armed conflict (LOAC). Two of the charges, conspiracy and providing material support to terrorism, are inherently problematic. The remaining offenses, murder and attempted murder “in violation of the law of war,” and spying, are capable of valid application, but lack legitimacy in Khadr’s factual situation. Essentially the government seeks to distort the fundamental legal equality between opposing belligerents into a unilateral shield for coalition personnel, turning the conflict into a “hunting season” in which U.S. forces can shoot their enemy on sight but their adversaries commit a war crime by fighting back. Because the tribunals’ statutory bases, the Military Commission Acts of 2006 and 2009, were enacted after Khadr was in custody, any charges lacking sound grounding in the LOAC constitute impermissible ex post facto enactments. These charges fail that test and the commission thus lacks jurisdiction. Khadr can only be validly tried in a U.S. or Afghan domestic law court.