By Nicole Karlebach, International Policy Fellow
Omar Khadr appeared before Military Judge Patrick Parrish in Guantanamo Bay this week to confirm his decision to fire his American legal team. He then stated that he plans to boycott the military commissions because he considers them "unfair" and "unjust."
In explaining his decision, Khadr read from his own handwritten prepared statement that cited his objections to a proposed plea deal that would have had him admit guilt, saying that such a move would allow the U.S. government to use him to fulfill its goals and would provide the government with an excuse for torturing and abusing him as a child. Khadr asked how he could get justice from a process like the one found in the military commissions.
That's a good question.
Khadr was captured at age 15 following a gunfight between U.S. forces and al Qaeda fighters in a remote part of Afghanistan. Khadr is accused of throwing a grenade that killed a U.S. soldier. He has spent the last 8 years (about a third of his life) in U.S. custody and he claims that during that time he was subject to torture at both the Bagram detention facility and in Guantanamo.
He could face a life sentence if convicted.
Despite the gravity of his alleged crimes, it took three years for him to be charged before the military commissions and as his case has progressed over the past five years it has been subject to multiple changes in governing law and rules. Khadr has also had around a dozen different lawyers.
Most recently Khadr is reported to have been upset by the testimony of interrogators during a pre-trial suppression hearing to examine whether his statements should be excluded because they were the product of torture and abuse. At that hearing one interrogator admitted to telling a then-teenage Khadr a fictitious story about a young Afghan who was gang raped and killed in a U.S. prison.
This week's hearing only further highlighted the problematic nature of the military commissions.
Judge Parrish started the morning by asking Khadr how he wanted to proceed. "I'm representing myself and I'm boycotting," said Khadr. Despite a lack of clarity as to what this meant for legal purposes, the Judge started a line of questioning to assess whether Khadr was fit to proceed pro se.
In the federal courts there is precedent and case law to help inform this type of determination, but in the military commissions there is not. Given that Khadr is a former child soldier with limited schooling and a history of trauma, a finding that he is able to represent himself could have severe consequences.
The Judge asked Khadr if he had ever studied law or had legal training. The young detainee (he's only 23) replied, "It doesn't matter, it's not going to make a difference."
Judge Parrish explained on multiple occasions throughout the day that Khadr would be better served by retaining counsel and advised him against trying to represent himself. Khadr maintained that a lawyer wouldn't know the rules any better than he would because no one really has the requisite experience to navigate the newly designed military commissions. In referring to the rules themselves he said, "They're not firm," and "They can change anytime." It's not surprising that Khadr thinks this since the Manual for Military Commissions containing the current rules came out in late April 2010, just as his last pre-trial hearings were getting underway.
As part of the determination on self-representation, military defense lawyer, Lt. Col. Jackson, urged the Judge to consider constitutional case law on point regarding standards for competency to represent oneself. This was largely dismissed.
The Government asked the Judge to inquire into Khadr's mental state to determine whether referencing certain topics such as his capture and treatment might adversely affect his ability to participate in the proceedings. The Judge entertained the inquiry to which Khadr replied, "This place is not a five star hotel so I don't know what effect it's had on me. I'm sure it's had an effect."
More than once the Judge appeared poised to rule that Khadr would be fit to represent himself but never got there because, after Khadr consulted with lawyers, he finally stated that he wanted to boycott the proceedings. He said, "I am just going to boycott whatever it takes," and,"I don't want to take part."
The Judge quickly retained Lt. Col. Jackson as Khadr's detailed counsel saying he would not let him proceed without any assistance. This put to rest the confusion that had ensued for most of the morning but not before highlighting the inherent problems in determining complex legal questions without the luxury of precedent or case law as a guide.
Then it was on to other business including determining Lt. Col. Jackson's responsibilities in defending a client who does not want his services. It was determined that Lt. Col. Jackson will have to consult his licensing authorities to know how he can proceed.
A similar issue was confronted by the military lawyer for Ali Hamza Ahmed Suleiman al Bahlul, the Guantanamo detainee who opted to boycott his military commission proceedings. Bahlul's lawyer remained mute for his trial to respect his client's wishes. Bahlul received a life sentence.
Judge Parrish, the Government, and Khadr himself are eager to stay on schedule and go to trial as soon as possible given the length of time this case has already taken; but, since practically every legal issue raised is a new one for the military commissions, it remains unpredictable how fast they will be able to move. The August trial date is still set but is subject to change.
In referring to the need to hold trials for the September 11th detainees, Attorney General Eric Holder recently remarked that "justice has been denied too long." Today's pre-trial proceedings in the Khadr case illustrate that if swift justice is the goal, the military commissions are not the right place as they are ripe with conflict; instead we should rely on our trusted federal court system that has convicted over 400 terrorists to date.
The latest proceedings in the Khadr case illustrate a failing for the jurisprudence of the military commissions. Detainees that boycott military commission trials because of a perceived lack of fairness detract from the legitimacy of those proceedings. Questions as to whether and how vigorously to represent uncooperative clients pose yet more daunting hurdles for the commissions. If a fair hearing on the merits is the goal of trying terror suspect detainees--and it should be--then this week's hearing was just another example of why individuals like Omar Khadr should be tried in federal courts.
As I write it's early morning in Guantanamo Bay and the Star Spangled Banner is sounding on the intercoms. Even here the song is a refreshing reminder that the U.S. has a long history of commitment to justice. We should trust our federal system where all parties are better equipped to handle unforeseen and difficult legal questions.
The other story unfolding at Guantanamo involves the Pentagon's decision late last week to lift its ban on Miami Herald reporter Carol Rosenberg and its expressed willingness to consider changes to the rules governing the coverage of proceedings. This came one week after a coalition of major news organizations protested the rules as legally deficient and just days before the Khadr hearing was set to take place.
Human Rights First welcomed the Pentagon's actions in a statement last week and urged that it lift its ban on three other veteran reporters from Canada, one of whom continues to be barred from covering the proceedings.
Fortunately, Rosenberg was here in Guantanamo this week to report on Khadr's decision to boycott his trial. As HRF has stated, because these proceedings take place on a remote U.S. military base in Cuba and are open only to a select number of journalists, military personnel and NGO observers, they are essentially off-limits to the general public, unlike ordinary federal trials. Banning reporters who have consistently covered this newly-constructed justice system compromises crucial access to information and severely diminishes transparency.
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