“Sentence First – Verdict Afterwards:” New Manual for Military Commissions

by Dennis Loo

Kafka would recognize this one in an instant.  

As David Fraft, LTC in USAF JAG Corps Reserve, former lead defense counsel in the Office of Military Commissions, writes in the Huffington Post, the Department of Defense (DoD) has just issued its new manual on the MCA of 2009.
As Fraft puts it:
“In the new Manual the following official comment has been included in explanation of the offense of Murder in Violation of the Law of War: ‘an accused may be convicted in a military commission. . . if the commission finds that the accused engaged in conduct traditionally triable by military commission (e.g., spying; murder committed while the accused did not meet the requirements of privileged belligerency) even if such conduct does not violate the international law of war.’ Astoundingly, according to the Pentagon, a detainee may be convicted of murder in violation of the law of war even if they did not actually violate the law of war.”
The DoD’s Manual, in other words, is saying, “we can find you guilty of an offense that is admittedly not the offense that we are convicting you under the provisions of.”
Fraft goes on to say:
“The commentary also directly contradicts the elements of the offense which specifically include a requirement that the prosecution prove beyond a reasonable doubt that the killing was in violation of the law of war. Although comments in a regulation do not have the force of law, the inclusion of this commentary is clearly intended to send a message to the military commission judges that they are not to let the law of war get in the way of a conviction.”
Fraft observes that this DoD Manual’s issuance comes on the “eve of the recommencement of the Omar Khadr commission. Khadr, a Canadian who was just 15 when he was captured in 2002, is charged with murder in violation of the law of war. Khadr allegedly threw a hand grenade which killed a U.S. soldier, but there is no evidence that he violated the law of war in doing so and in court filings the prosecution has admitted to relying solely on his status as an unprivileged belligerent to prove this element of the offense.”
As the Red Queen famously put it in Lewis Carroll’s Alice in Wonderland:
“Sentence first - verdict afterwards.”
Note: I learned of Fraft’s article from Jeff Kaye’s article at FireDogLake which is linked to by John Cory here.