When did the Conflict with al Qaeda Start? Two Visions at Guantánamo

Sahr MuhammedAlly – a lawyer at Human Rights First in the Law and Security Program – is in Cuba to monitor the proceedings and is reporting back on events as they unfold. She is providing updates of what she observes.

Guantánamo Bay, July 28, 2008: One of the contentious issues in the so-called “war on terror” is when did the “war” against al Qaeda start and when does it end? Measuring the start of this “war” bears directly on the government’s efforts in the Guantánamo military commission proceedings to prosecute detainees for various acts the government claims were not simply crimes but in fact were acts in violation of the laws of war. And measuring its end bears on the government’s claim to be able to hold these Guantánamo detainees, even without charge or trial, until the conflict with al Qaeda – and possibly other groups as well – is over.

In the case of Salim Hamdan – whose trial at Guantánamo is now in its second week – the government has alleged that Hamdan was part of the conspiracy with Osama bin Laden to engage in hostilities against the United States beginning in 1996. Hamdan is charged with conspiracy and providing material support for terrorism. He admits to having been one of bin Laden’s drivers.

The second week of Hamdan’s trial began with two experts offering very different opinions of “war,” in order to assess when the conflict with al Qaeda began. The government’s counterterrorism expert opined about his view of al Qaeda’s version of war, based on Osama bin Laden’s fatwas and a collage of al Qaeda propaganda videos compiled in a movie for the prosecution at a cost of $20,000. The defense witness gave a legal analysis on armed conflict under the Geneva Conventions.

“The al Qaeda Plan”

On Monday, the prosecution debuted “The al Qaeda Plan” – a made-to-order compilation of al Qaeda propaganda videos found on the Internet and narrated by the government’s counterterrorism expert, Evan Kohlmann. The movie was made, among other reasons, in order to prove the government’s theory of when the armed conflict with al Qaeda began.

Kohlmann studied Arab-Afghan fighters and al Qaeda in college, went on to get a law degree – but admits he is no expert on the laws of war – and has a counterterrorism blog. He speaks basic Arabic but has never been to Afghanistan or Pakistan.

The seven-part, ninety-minute video, which the government apparently plans to use in many Guantánamo prosecutions, narrates the story of the Afghan jihad against the Soviets (although it excludes any reference to U.S. support of the jihad against the Soviets), bin Laden’s activities in Afghanistan and Sudan, the USS Cole bombing, the Kenya Embassy bombings, and the September 11 attacks.

On cross-examination, Kohlmann testified that the Office of Military Commission (OMC) commissioned the video and changed the proposed name of the film from the “Rise of al Qaeda” to “The al Qaeda Plan,” in order to draw a closer comparison to “The Nazi Plan,” a famous documentary movie produced sixty years ago by the U.S.-led prosecution for the post-World War II Nuremberg trials. “The Nazi Plan” was based on German footage that showed the defendants charged in those prosecutions meeting with Hitler. Hitler’s driver, incidentally, was not prosecuted at Nuremburg, but was a witness at the Nuremberg trials.

The defense objected to having the video shown because it did not show or involve Hamdan, it did not show or even suggest that Hamdan was involved in or had any knowledge of the attacks depicted, and because its images of the destruction of the Twin Towers would unduly prejudice the military commission’s panel of military officers who will determine Hamdan’s fate. Every government witness to take the stand in this trial has testified that there is no evidence that Hamdan had any role in the planning or execution of any terrorist attack, including 9/11. Navy Captain Judge Keith Allred nevertheless overruled defense objections to the movie. He did, however, agree that the movie’s vivid images of the World Trade Center attacks would be “more prejudicial than probative,” and initially ruled that it should not be shown to the panel. Two hours later, however, Judge Allred reversed his position, noting that the prosecution had already shown images of charred bodies in Kenya, and allowed the images of the 9/11 attacks to be shown.

When Does “War” Actually Start?

Hostile acts, including terrorist attacks that take place in a non-international armed conflict (i.e., a conflict not involving two or more nations), do not automatically trigger application of the laws of war. Defense expert Geoffrey Corn, a retired Army judge advocate, former Pentagon law of war expert and now a law professor, testified that, under the laws of war, one of the critical factors that determine whether an armed conflict has begun is the response by a government to a particular attack. Corn testified that mere deployment of military forces overseas is not an indicator of armed conflict invoking the laws of war, which allow one to use deadly force upon sight of the enemy but within parameters specified in the Geneva Conventions. Instead, Corn testified, one needs to look at the responding government’s rules of engagement (ROEs) governing its military’s conduct in the field to determine whether that government is acting as if the laws of war are applicable and whether it is at “war.”

Corn testified that the scope, duration and intensity of hostilities also are factors in determining whether an armed conflict exists for law of war purposes. But because even a “law enforcement” response has its own scope, duration and intensity of hostilities, the key factor in the analysis is the government’s response.

Corn testified that the United States’ reaction in September-October 2001 to the 9/11 attacks triggered the application of a law of war framework, and the United States thus was in armed conflict at that point with the Taliban and al Qaeda in Afghanistan. Corn, however, testified that the United States’ reaction to the 2000 USS Cole attack was a law enforcement response, largely centered on a Justice Department investigation and prosecution of persons responsible for the attack. In contrast, the United States did respond militarily to the 1998 Kenya embassy bombings by attacking al Qaeda training camps in Afghanistan with missiles. But Corn testified that this military response did not result in an indefinite state of armed conflict, and that the United States was in armed conflict in 1998 only for the limited purposes of those missile attacks.

The Office of Military Commissions: Placing Another Thumb on the Scales

A primary responsibility of the OMC – and Judge Susan Crawford, its “Appointing Authority” – is to ensure the proceedings in Guantánamo are conducted lawfully and fairly. They act, though, all too often as if their responsibility is to help the prosecution win convictions. Kohlmann’s movie and his testimony before the commission was paid for by the government, upon approval of Judge Crawford. And Professor Corn’s testimony for the defense? It was provided pro bono, after Judge Crawford disapproved any government funding for it as “irrelevant.”

When Kohlmann’s movie was shown, the viewing gallery, comprised of my NGO colleagues and members of the press, was stunned. We saw repeated images of the passenger jets crashing into the Twin Towers, and people screaming. The footage was powerful. Defense lawyer Charlie Swift had argued that the footage would “terrorize the jury.” It probably did; it certainly did us. And it proved – it attempted to prove – nothing about Salim Hamdan.