Is War A Part Of A War Crime?

Team Infidel

Forum Spin Doctor
Miami Herald
February 17, 2008 Guantanamo's war court is struggling with defining the start day of the long war, an overarching issue in the military commissions case of Osama bin Laden's driver.
By Carol Rosenberg
GUANTANAMO BAY NAVY BASE, Cuba -- When did the war on terror begin? Is the globe really one big battlefield? Can one gunman's firefight be another man's terror?
Or, is it like Supreme Court Justice Potter Stewart's definition of pornography: People know it when they see it?
At the military commissions here, the definition of the ongoing war on al Qaeda -- when it started, who is immune from prosecution -- is emerging as a core issue for military judges and eventually U.S. officers who will sit in judgment on alleged terrorists swept up in the Pentagon's global war on terrorism.
Prosecutors say the war began long before the Sept. 11, 2001, attacks on the United States, and have charged captives here in conspiracies dating back to the mid-1990s.
Defense lawyers argue that the Pentagon has fashioned a definition of a new kind of war to suit its military commissions and carry out offshore justice.
That's because, says defense attorney Charlie Swift, a former U.S. Navy officer, ``There is no war crime outside of war.''
The issue is not new.
Attorneys -- and politicians -- have been arguing the extent of President Bush's power since Congress passed its authorization for the use of military force a week after the Sept. 11, 2001, attacks.
The administration at first used it to launch its late 2001 assault on Afghanistan to topple the Taliban, hunt down Osama bin Laden and dismantle al Qaeda's training camps in reprisal for the 9/11 attacks. But White House lawyers have since cited it as justification for a range of activities -- from extending the military's reach beyond the Afghan theater to legalizing the intelligence community's eavesdropping, interrogation and detention powers.
Now a test of the war powers is emerging in the al Qaeda co-conspirator case of Salim Hamdan, a Yemeni who admits he was a driver in Osama bin Laden's six-member motor pool in Afghanistan.
Defense argument
Ahead of a late May trial date, Hamdan's lawyers are asking a military judge, Navy Capt. Keith Allred, to throw out or at least reduce the charges against the father of two with a fourth-grade education who is among 275 detainees at this remote U.S. Navy base in southeast Cuba.
They argue the charges are too broad, retroactive and in some instances redundant.
Prosecutors say the driver was a trusted al Qaeda member who helped bin Laden elude capture, a sometime bodyguard and occasional arms courier who was an al Qaeda co-conspirator in everything from the 1998 U.S. embassy bombings in East Africa to the October 2000 suicide bombing of the USS Cole to the Sept. 11 attacks. They do not say, however, that he actually helped plan the attacks.
At pretrial arguments, Allred asked when the Pentagon is alleging that Hamdan joined the conspiracy.
In Afghanistan
After a brief huddle, Justice and Defense prosecutors announced Hamdan's start date: February 1996, when U.S. evidence suggests Hamdan stepped into Afghanistan on his first trip from his native Yemen.
He has admitted in affidavits that he went to Afghanistan answering a call to jihad to fight with Muslims in Tajikistan, to defend Islam, but not from the United States. Once in Afghanistan, he met bin Laden, who arrived some months later -- and says took a job as a driver for an income, not ideology.
Moreover, it was not until August 1996, four months after Hamdan arrived in Afghanistan, that bin Laden felt sufficiently entrenched there to issue a ``Declaration of Jihad against the Americans.''
The Pentagon's first round of charge sheets, withdrawn after the original commissions were ruled unconstitutional, mentioned the declaration prominently in all its war-crimes cases, perhaps suggesting that by then the United States and al Qaeda were already at war.
But the current charge sheets neither name the war nor define the battlefield. Rather, they identify the 9/11 and embassy bombings and Cole attacks as among the war's hostilities.
At a recent hearing, the judge seemed to be grappling with the overarching question. He asked lawyers on both sides: ``Which branch of government is charged with determining when hostilities began?''
Swift replied that in the absence of a declaration of war by Congress, the courts must decide.
Justice Department lawyer Jordan Goldstein replied that the law governing war crimes trials said it would cover the period, before, on or after the Sept. 11 attacks, adding ``9/11 was not the start of hostilities. It was in fact the point where it was hard to ignore that we were at war.''
Two theaters
Amnesty International rejects the notion of a global war on terror entirely.
Rather, it sees U.S. wars limited to two specific theaters -- in Iraq and in Afghanistan, where the United States had previously armed and trained mujahadeen fighters resisting the Soviet invasion.
Amnesty attorney Jumana Musa, who has been tracking the military commissions from the start, says the government cases don't offer a specific start date for the war. Instead, she said, based on various evolving commissions cases, the war began ``sometime after they stopped funding the mujahadeen and before the Sept. 11 attacks. You can't be funding the guys you are at war with.''
An outspoken critic of the system, Musa said the open-ended war theory allows the United States to hold the 275 detainees here indefinitely without charges, as enemy combatants, while arguing that because of the ongoing war they can't disclose interrogation techniques nor charge them in civilian courts.
Own definition?
Defense lawyers for Guantánamo captives accused the prosecution of, in a sense, shaping the war to fit each detainee's circumstance. In the case of Omar Khadr, accused of throwing a grenade at age 15 that killed an American soldier in a firefight in Afghanistan, his case alleges a war crimes conspiracy dating back to 1997, when his father moved the family from Toronto to Afghanistan.
'According to a recent government filing, Omar allegedly began `conspiring' with al Qaeda to commit 'war crimes' as a 10-year-old child,'' Khadr's defense lawyer, U.S. Navy Lt. Cmdr. William Kuebler, said in an e-mail.
Ridiculing the government's case, he added: 'Omar's `war' has consisted of being shot in the back, while wounded, after a four-hour bombardment, followed by years of illegal detention, coercive interrogation, and a planned trial for war crimes, which will likely result in a life sentence for little more than surviving the firefight in which he was shot.''