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Cowboy Justice at Guantánamo: Judge Confirms Use of Secret Evidence in the Trial of Omar Khadr

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Just days before lawyers will argue in the Supreme Court that the Guantánamo detainees have the right to challenge the basis of their detention, the latest news in the ongoing saga of Omar Khadr, the Canadian who was just 15-years-old when he was captured in Afghanistan after a firefight in which a U.S. soldier was killed, confirms that the administration has no regard for the law, and is intent on pushing forward with trials that owe more to the show trials of Stalinist Russia than they do to long-established principles of American justice.

Khadr's team of defense lawyers, led by Lt. Cmdr. William Kuebler, explained that they have been ordered by Col. Peter Brownback, the judge in Khadr's trial by Military Commission, which will probably take place in May 2008, not to tell their client -- or anyone else -- the identity of witnesses against him. Kuebler said that, although he had been given a list of prosecution witnesses, the judge's decision required him to keep secrets from his client. He added that he would ask Col. Brownback to revoke the order, pointing out, as The New York Times described it, that it would hamper the defense team's ability "to build an adequate defense because they cannot ask their client or anyone else about prosecution witnesses, making it difficult to test the veracity of testimony," and because it "treated Mr. Khadr as if he had already been convicted and deprived him of a trial at which the public could assess the evidence against him."

The judge's order revealing this latest blow to justice (dated October 15 and initially issued without public disclosure), was only released following complaints from several news organizations, including The New York Times and the Associated Press, that they were denied access to much of the court proceedings against Khadr, as many of the arguments in the case were being made via e-mails to which the public had no access.

Although the administration immediately sought to defend its position, with one of the prosecutors, Major Jeffrey Groharing, declaring, "It is conceivable, if not likely, that al-Qaeda members or sympathizers could attempt to target witnesses," the blunt truth is that this latest attempt to handicap Khadr's defense team only adds to the list of disturbing precedents that the Bush administration is attempting to pursue in Khadr's case. Not content with attempting to redefine a wartime battle as a "war crime" and shunning a universal prohibition against the prosecution of "child soldiers," those driving the much-derided Military Commissions have now confirmed their disregard for the law by endorsing a skewed trial rigged to secure a prosecution.

This has been apparent to the principled military lawyers appointed to the Military Commissions since their establishment in 2003. One of their number, Lt. Cmdr. Charles Swift, who lost his job earlier this year as a result of vigorously defending the rights of Salim Hamdan, one of Osama bin Laden's drivers, to receive a fair trial, told a meeting of law students this April that the government's insistence that the Commissions "were 'full and fair trials' reminded him of an old Western in which a character is told, 'You're going to have a fair trial, and then we're going to hang you.' 'They weren't doing what military commissions historically were set up to do,' he said. 'Rather than bring law to a lawless place, it was to create a lawless place.'" Responding to the latest news, Lt. Cmdr. Kuebler nailed this latest manifestation of cowboy justice in a single line: "Instead of a presumption of innocence and of a public trial, we start with a presumption of guilt and of a secret trial."

For further information about the Military Commissions, see my newly published book, The Guantánamo Files: The Stories of the 774 Detainees in America's Illegal Prison (Pluto Press).