The background on Khadr and tomorrow's "pretrial hearing":
Lawyers for Omar Khadr will ask the U.S. military to drop charges faced by the young Canadian as they attend a pretrial hearing at the Guantanamo Naval Base on Monday.As recently as December 12, 2007, the UN Special Rapporteur on human rights and counterterrorism Martin Scheinin outlined concerns with the "lack of judicial guarantees and fair trial procedures" for detainees facing military commission proceedings at Guantanamo Bay:
They have maintained that Khadr, the only Canadian being held at the military detention facility in Cuba, should go free because trying him for crimes he allegedly committed as a minor contravenes international law.
Khadr, 23, has been in custody at Guantanamo Bay since 2002. He was arrested at age 15, following a shootout in Afghanistan.
He is accused of murder in the death of American medic Sgt. First Class Christopher J. Speer. Khadr is also charged with spying, conspiracy and supporting terrorism.
Addendum three contains the report of the Special Rapporteur's mission to the United States, from 16 to 25 May 2007. The report considers a number of issues, including the Guantánamo Bay detainees and their categorization as "unlawful enemy combatants"; the use of military commissions to try terrorist suspects; interrogation techniques; definitions of terrorism under U.S. law; alleged targeted killings of terrorist suspects by U.S. agents; and profiling. Among its recommendations are that the categorization of persons as "unlawful enemy combatants" be abandoned, and that the United States release or put on trial those persons detained under that categorization; and that legislative amendments be made to remove the denial of habeas corpus rights under the Military Commissions Act 2006 and the restrictions upon the ability of Guantánamo Bay detainees to seek full judicial review of their combatant status. Gravely concerned at the enhanced interrogation techniques reportedly used by the CIA, the Special Rapporteur urges the United States to ensure that all its officials and agencies comply with international standards, including the International Covenant on Civil and Political Rights, the Convention against Torture and the Geneva Conventions. He recommends that the Army Field Manual be revised to expressly state that only enumerated techniques are permissible. The Special Rapporteur further urges the Government to take transparent steps to ensure that the CIA practice of "extraordinary rendition" is completely discontinued and is not conducted in the future, and that CIA interrogation techniques are regulated in line with the position expressed above in respect of the Army Field Manual.The lack of habeas corpus rights pointed out by the UN means effectively that despite minor improvements to the reinstated Military Commissions Act in 2006 following its being struck down by the U.S. Supreme Court, detainees can sit in Gitmo for a decade without being able to challenge their detention:
In an election year, development of a carefully crafted system fell by the wayside, leaving all of us to begin again – years after the initial processes started – with a repackaged version of the original commissions system that may not pass judicial muster. To be sure, the Act incorporated some of the piecemeal improvements that have occurred during the last five years of this process, such as the right of appeal, the ability to attend one’s own trial, the explicit exclusion of evidence derived by torture, and the right to self-representation.Further, the blatant political interference with the Gitmo processes has been exposed by the former chief prosecutor there, who resigned citing political interference with the independence of his office:
But any improvements are overshadowed by Congress’ express desire to strip any ability to enforce these rights from detainees by prohibiting them access to federal courts. And if the original Act stands, any meaningful check on abuses will have to wait for a time where the individual tried is convicted, appeals are filed with the interim Court of Military Commissions, which still falls under the control of the Department of Defense, and only then can the accused petition the Circuit Court of Appeals for the District of Columbia. By the time an individual accused reaches this point, he will have most likely already spent a decade incarcerated. And only at this point will he be able to challenge his right to be tried in a system that appears to be pre-disposed toward conviction.
We already know, therefore, that the military commissions are a bad idea for those of us who want to see speedy justice at Guantánamo. But with the resignation of Colonel Davis as chief prosecutor, we are now learning that the military commissions – whatever their inherent flaws and virtues – have themselves been corrupted by politics. If Davis’s allegations are to be credited, then the commissions system is being manipulated by political actors in an improper, unethical and potentially illegal manner – a politicization of the Guantánamo justice system that echoes the U.S. Attorneys scandal.In Khadr's case, the judge has issued an order preventing his counsel from discussing prosecution witnesses with Khadr. The details:
According to Davis, for more than a year Pentagon officials have sought to influence his decisions about “who we will charge, what we will charge, what evidence we will try to introduce, and how we will conduct a prosecution.” For example, speaking last week to the Wall Street Journal, he explained that in September 2006, Deputy Defense Secretary Gordon England discussed with him the “strategic political value” in charging some of the prisoners before the midterm elections. Similarly, in January 2007, Pentagon General Counsel William J. Haynes II (himself on the verge of being withdrawn as a nominee for the Fourth Circuit U.S. Court of Appeals because of his involvement with the infamous “torture memos”) telephoned Davis to prod him to charge David Hicks, apparently as a political accommodation to the Australian Prime Minister. Even after Haynes was advised that this interference was improper, he again called Davis, suggesting that he charge other prisoners at the same time to avoid the impression that the charges were “a political solution to the Hicks case.”
More recently, Davis filed a formal complaint alleging that Brigadier General Thomas Hartmann, the Legal Advisor to the authority overseeing the military commissions process, had pushed him to file cases that would attract more public attention and garner support for the tribunal system, even though such cases would require secretive, closed proceedings. (By Pentagon regulation, the Legal Advisor is supposed to be an impartial administrator of justice, not an arm of the prosecution.)
In September of this year, Davis threatened to resign if anyone tried to intimidate him. He has now done so, stating bluntly that, “as things stand right now, I think it’s a disgrace to call it a military commission – it’s a political commission.”
What makes this all the more alarming is that Colonel Davis is the last person you would expect to stand up as a whistleblower.
US military judge Col. Peter Brownback has issued a blanket order [PDF text] protecting the identities of prosecution witnesses in the military commission trial of Omar Khadr [JURIST news archive], the New York Times reported Saturday. The order, originally rendered on October 15, was contained within previously unavailable commission documents [PDF text, 694 pages] that were only recently released by the Pentagon. The prosecution requested the measure, citing possible terrorist retaliation against those who testify, and may move to bar any information from the trial that could be used to identify the witnesses. Khadr's lawyer has said that the order unfairly hinders their ability to mount a defense because it prevents him from questioning the reliability of testimony as he is unable to discuss the identities of witnesses with anyone, including Khadr.The right to know the witnesses against you and confront them, one of the fundamental tenets of a fair judicial system...nope.
This order comes on the heel of the June 2007 decision that Khadr was not an "unlawful enemy combatant" and therefore not subject to the Military Commissions Act 2006 as applicable at Gitmo. But never mind, that decision was quickly reversed in September 2007 as a matter of semantics, bringing Khadr back under the Gitmo process:
Congress intended for military commissions to "apply the principles of law" and "the procedures for trial [routinely utilized] by general courts-martial..." This would include the common procedures used before general courts-martial permitting military judges to hear evidence and decide factual and legal matters concerning the court's own jurisdiction over the accused appearing before it.Canada is in the embarrassing position of standing back and letting this show trial proceed. In the face of all of the evidence demanding that they stand up for the rule of law and extricate a Canadian citizen from this morass, the silence from the Harper government is damning.