July 2, 2009 3:14PM # A Terrorist We Should Have Prosecuted By [David Rittgers](https://www.cato.org/people/david-rittgers) --- SHARE Andy McCarthy makes a [good point](http://corner.nationalreview.com/post/?q=Mzc5NGIxMmM3M2QzZWNjOGY3NTYxNWJhM2I5ZTMzYjk=) over at [The Corner](http://corner.nationalreview.com/) about Laith al-Khazali, a member of a Shiite militant group responsible for the deaths of American troops in Iraq. Al-Khazali has been released, allegedly as part of negotiations with terrorists holding British hostages. Senators Sessions and Kyl have [questioned](http://www.washingtontimes.com/news/2009/jul/02/senators-concerned-us-part-of-deal-over-hostages/?source=newsletter_must-read-stories-today_more_news_carousel) this action in a letter to President Obama. McCarthy lays out the facts on al-Khazali [here](http://article.nationalreview.com/?q=ODFkYTU2MjBmMTE5MDUzZTEzZWMyMTE5ZWZjNWI4Mjg=&w=MA==). Al-Khazali participated in a sophisticated attack on American troops in [Karbala](http://www.longwarjournal.org/archives/2007/01/the_karbala_attack_a.php). The militants wore American uniforms and took American soldiers hostage. After leaving the site of the attack, the militants executed their prisoners. Though I have disagreed with McCarthy on [other](https://www.cato.org/2009/06/02/mccarthy-does-petraeus-a-disservice/) [issues](https://www.cato.org/pub_display.php?pub_id=9909), he makes a valid point here. Al-Khazali is guilty of honest-to-goodness war crimes. Wearing an enemy’s uniform for infiltration is permissible. Wearing an enemy’s uniform while shooting at them is perfidy, a prosecutable war crime. Otto Skorzeny, head Nazi commando, was [acquitted](http://www.ess.uwe.ac.uk/WCC/skorzeny.htm) of perfidy after World War II. Skorzeny’s men had infiltrated American lines during the Battle of the Bulge while wearing American uniforms. They avoided firing at American troops while in our uniforms, though in two instances fired at American troops in self-defense. British commando Forest Frederick Edward Yeo-Thomas testified for the defense, saying that he had infiltrated German lines in a German uniform. W. Hays Parks provides an excellent discussion of special operations soldiers’ use of non-standard uniform and the legal boundaries of this issue [here](http://web.onetel.com/%7Easpals/parks-nonstandard.pdf). Al-Khazali crossed the line by wearing an American uniform while firing at our soldiers. Killing enemy soldiers after they are in your custody is also a prosecutable war crime. We prosecuted German soldiers for doing this in the [Malmedy Massacre](http://www.historynet.com/massacre-at-malmedy-during-the-battle-of-the-bulge.htm), and have prosecuted our own soldiers for killing [prisoners](http://news.bbc.co.uk/2/hi/americas/6461215.stm). We have even prosecuted contractors for killing prisoners on the [battlefield](http://www.nola.com/news/index.ssf/2008/12/killing_in_afghanistan_hits_ve.html) and during [interrogation](http://www.newsobserver.com/nation_world/passaro/story/543038.html). Al-Khazali deserves to be brought to justice. It is a shame we did not provide it. ##### Related Tags [Defense and Foreign Policy](https://www.cato.org/defense-foreign-policy), [Constitutional Law](https://www.cato.org/constitutional-law), [Robert A. Levy Center for Constitutional Studies](https://www.cato.org/robert-levy-center-constitutional-studies) [![Creative Commons License](/build/cato_2020/images/creative-commons.svg)](http://creativecommons.org/licenses/by-nc-sa/4.0/) This work is licensed under a [Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License](https://creativecommons.org/licenses/by-nc-sa/4.0/).