(Guantanamo Bay Naval Base, Nov. 9) -- When Omar Khadr, the
21-year-old Canadian walked into the Guantanamo courtroom escorted by
three military police on Thursday he seemed calm. His boyish but
bearded face was free of obvious emotion. This, after all, was the
third time that the Pentagon has
tried to bring charges against him in the Guantanamo-based military
commissions.
The first round of charges were dismissed in 2006, when the Supreme
Court ruled the former military commission system illegal. The second
set of charges dismissed in June by the same military judge presiding
yesterday, Colonel Peter E. Brownback. Back then, Brownback ruled he
did not have jurisdiction to proceed because Khadr had never been
determined to be an "unlawful enemy combatant," which is a
prerequisite for military commission jurisdiction. But his ruling had
been overturned by a hastily constituted Court of Military Commissions
Review, so Khadr was back in the courtroom yet again.
The first order of business was one of representation. Brownback asked
Khadr whether he was satisfied with his military defense counsel.
Khadr said that he was.
Next came what's known as the "voir dire" of the judge - during which
the parties get to cross-examine the judge to ascertain whether he is
sufficiently impartial and fit to serve.
Khadr's military defense counsel, Lt. Commander William Kuebler, fired
off a series of questions. How well did Brownback know the "convening
authority"? Did he fraternize with the prosecution? How was he
selected to be a military commission judge?
Then came the bombshell.
What did he think of the Supreme Court's ruling in Hamdan v. Rumsfeld
- the 2006 Supreme Court case that had struck down the former military
commissions? "Do you agree that Hamdan held the prior system
illegal?" asked Kuebler.
"No, I don't," answered the judge.
Never mind that the Supreme Court ruling stated that the rules
specified for Hamdan's trial are illegal (emphasis added). Never mind
that the Court concluded that the previous military commissions
violated statutory requirements of the Uniform Code of Military
Justice, as well the basic fair trial requirements of the Geneva
Conventions.
And never mind that the Supreme Court case was about the very system
in which Brownback was a presiding judge. It almost seemed as if
Judge Brownback never read it.
Brownback was then asked what law he would rely on as judge in the
military commissions. "The Military Commissions Act and related
Department of Defense rules and orders," the judge answered.
Notably, Brownback made no mention of the US constitution or
international law. But this answer was not much of a surprise.
Prior to the hearing, he had issued an order explicitly prohibiting
the defense and prosecution from raising constitutional, criminal, or
international law in arguing whether the military commissions had
jurisdiction to proceed.
Kuebler then challenged Brownback's impartiality, arguing that the
judge's blatant misinterpretation of the Hamdan ruling, coupled with
his apparent disregard for both the constitution and international law
would make it impossible to challenge the commission's legitimacy. As
Kuebler accurately noted, the question of the commission's legitimacy
is both key and undecided.
The prosecutor, Major Jeffrey Groharing, called these arguments
"irrelevant." Not surprisingly the judge agreed.
Next the judge ruled that, given the appeals court's reversal of his
June dismissal, he would presume jurisdiction to proceed, but left
open the possibility for the defense to formally challenge this
assumption at a later date. The defense acquiesced, while making
clear that they would formally challenge this issue.
The prosecutor - ignoring the fact that he just won - insisted that
he should still be allowed to play the a video allegedly showing Khadr
making and planting explosive devices in Afghanistan. The judge
rejected the request, saying it unnecessary given that the prosecution
had nothing he had to prove.
And then the hearing was over. Once again the proceedings met my
expectations in only one way: They were as unpredictable as expected.
We - myself and a few other representatives of non governmental
organizations - paraded out to the blazing hot sun, where we were
allowed a few minutes interaction with the press. (Our military
handler told us the day before that it was his job to "keep us away
from the media." He seemed to be taking a temporarily respite from
this particular responsibility.)
We were escorted to outskirts of the media center where the
journalists were housed, but were not allowed in. Mosquitoes buzzing
and biting, the sun blazing, we held court in a small grassy area near
the press center until neither we nor the press could stand the
stifling heat.
Once we were escorted away, the real press conference began. We
learned the details later.
The defense counsel told the press that on Tuesday, just two days
before the hearing, the prosecution informed the defense about a
"potentially exculpatory witness." The details are either classified
or sufficiently sensitive, and could not be disclosed.
The prosecution claimed that they just learned of his existence - and
informed the defense within hours. But according to defense counsel,
at least some part of the government has known about this evidence
since the day of Khadr's arrest, in July 2002.
Why hadn't it been disclosed?
And why was the prosecution pushing for an evidentiary hearing on
Khadr's status - knowing that the defense had not yet had a chance to
review the potentially exculpatory evidence?
Once again, it seems that the government is more interested in
securing a conviction than anything else. The question of whether or
not Khadr can lawfully be tried by the commissions or is actually
guilty of the crimes for which he has been accused seems secondary.
Too bad for them that their track record has been so poor. After
nearly six years, the government has been able to secure just one
conviction, and that was for Australian David Hicks, a former Kangaroo
skinner who pleaded guilty and is now serving the last weeks of his
nine month sentence in Australia.
Jennifer Daskal is senior counterterrorism counsel at Human Rights Watch.