Yesterday, November 9, was their third attempt at arraigning Omar Khadr.
My friend Jumana Musa, an attorney who serves as Advocacy Director for Domestic Human Rights and International Justice for Amnesty International USA, was there to observe and report on the proceedings. Some of her findings were disturbing, to say the least.
Below is Jumana's report from the scene:
Live from Guantanamo: unfair pretrial proceedings for Omar Khadr
November 9, 2007
Today was the US government's third attempt at arraigning Omar Khadr. Khadr walked into the commission room today looking much more engaged than he did at his last appearance before the commission. Unlike his appearance in June, where he looked disheveled and dead to the world, today Khadr walked into the court room wearing what looked like white scrubs and slip on sneakers. His curly hair was tucked into a skull cap and his medium length beard was neatly trimmed. He seemed very engaged in the process, at times looking around the commission room and at one point smiling towards the gallery. He spent much of the hearing with his head cocked to the side, appearing to listen intently to the proceedings.
Initially, the hearing was scheduled so the judge could conduct a mini-hearing within a hearing to determine whether or not military commissions had jurisdiction over Khadr and could properly try him. This past June, the military judge in the case threw out the charges against him because there had been no previous determination. The issue at hand was a provision in the Military Commissions Act (MCA) which included a provision stating that in order for the commissions to have the ability to try Khadr, there must be a determination that he was an "unlawful enemy combatant." The Combatant Status Review Tribunals (CSRTs) convened by the Bush Administration to determine status never reached such a finding, instead confirming "enemy combatant" status. Since the MCA distinguishes between lawful enemy combatants and unlawful enemy combatants, the military judge found that such a determination was not sufficient to confer jurisdiction on a detainee and threw out the charges against Khadr. In addition, the military judge also found that not having jurisdiction, it would be in appropriate for him to conduct a hearing to determine Khadr's status.
In September, the Court of Military Commissions Review (CMCR), an intermediary appeals court created by the MCA, held that while the CSRT determination was not sufficient to find jurisdiction, the military judge could hold a status determination hearing to decide whether or not Khadr meets the definition of an unlawful enemy combatant. Initially, the purpose of today's hearing was to make such a determination, however when we arrived in the commission room we encountered a different hearing all together.- Advertisement -
At first it appeared that the military judge was cautious about proceeding in the face of a pending appeals court decision. He even made mention of the fact that three years ago on this same day, proceedings were stayed in the Hamdan case by a federal judge. Later it could become clear that the more fundamental issue was one of witness testimony. The prosecution had brought two witnesses to testify about Khadr's status. One of them was an FBI agent who had yet to talk to the defense. It was later revealed in a press conference that the prosecution had recently revealed that there was an additional witness not on the base who may have exculpatory evidence, or evidence that could potentially clear Khadr of some of the charges made against him. This witness has apparently been known to the government since the time of Khadr's arrest, and was recently disclosed by the prosecution. In meetings between the prosecution, defense and judge, it was decided that they would not go ahead with the status determination, giving the defense an opportunity to pursue this lead.
The judge did go through Khadr's right to counsel. At his last hearing, Khadr had fired his American attorneys and requested that he be represented by his Canadian attorneys. At issue is the rule that specifically prohibits any attorney who is not a US citizen from representing anyone before the commission. A non US national can serve as a only as a "foreign attorney consultant" and advise the case. This time, when asked if he wanted to keep his detailed military defense counsel and detailed assistant defense counsel, he responded in the positive.
Once the issue of representation was settled, the defense went forward with a voir dire of the military judge, which is the opportunity to ask the judge questions to establish his fitness to serve. There were a few stunning revelations during the questioning. In one exchange, defense counsel asked the military judge about his understanding of the 2006 Hamdan decision, which threw out the previous commissions created by the President. The judge responded that the Court ruled that in order to hold commissions, the President had to go to Congress for authorization. When pressed on whether or not he agreed that the Court held that the commissions were illegal and that they violated common article 3 of the Geneva Conventions (which, among other things, mandates that trials must be fair), judge replied that the Court referred to common article 3 and that to hold commissions the President had to go to Congress. The defense attorney then read the judge the relevant portions of the decision in which the court did say the commissions were illegal and that common article 3 applied. The fact that the judge could not either remember or would not concede the plain language of the Supreme Court decision that ruled on the previous commissions was disturbing to say the least. It was this decision that laid the groundwork for the MCA and the new commissions over which he presides.
An order issued before the proceedings as well as his answers during the voir dire were also cause for concern. In his order, he stated that in arguing Khadrs status, the attorney's could not cite international law or constitutional law. During the proceedings, when asked what rules he was bound by, he responded that he was bound by the MCA, the manual for military commissions and other subsequent rules - no other source of law. It is difficult to fathom how a judge in a US system is not bound by either the constitution or international law, especially when the determination being made is based on the laws of war which itself is based in nothing but international law. This judge, however, seems to feel he needs nothing more that the legislation Congress passed last fall and the rules that were promulgated to implement it to make these complex and cutting edge determinations.
The truly stunning moment came when defense counsel asked the judge what his understanding of Al Qaeda was. He responded that based on general reports, Al Qaeda is an organization/group dedicated to the spread of Islam. Anyone who has watched a news report or read a newspaper since September 11, 2001 is aware that Al Qaeda is known to be a terrorist organization, and is designated as such by the US government. It belies an underlying prejudice to take a group that has claimed responsibility for several mass attacks on civilian populations on at least four different continents and interpret it as a group that purports to spread a religion. This conflating of religion and terrorism is compounded by the fact that this particular judge, in this particular system, will exclusively adjudicate the cases of Muslim men. It calls into question how any Muslim man who enters his court can expect a fair trial, when they are associated with terrorism by the way in which they worship, not the acts they committed.- Advertisement -
At the end of the day, the judge in the case did find himself fit to serve on this commission, denying a challenge by the defense team. He also cut off a prosecution attempt to put forth some of the evidence that they believed would prove that Khadr was an unlawful enemy combatant. The matter of scheduling was left to a future meeting between the judge, prosecution and defense. We walked out of the commission building which is up on a hill, overlooking an old airport hanger and airstrip which is now called "Camp Justice." This tent city, having all the appearance of a refugee camp in a war torn country, is intended to facilitate the holding of multiple hearings at a time. It will house the lawyers, the press, the staff and the NGO observers, as well as create two additional commission rooms (currently there is only one). What it does instead is betray the very temporary nature of this shakily constructed "legal" system, which can be folded up and taken away at any time. It is a physical manifestation of the transitory nature of these commissions, which have been resurrected many times but survive only of life support.
Advocacy Director, Domestic Human Rights and International Justice
Amnesty International USA