THE BLOG
08/13/2010 03:26 pm ET Updated May 25, 2011

What Can Khadr's Jury Tell Us About Guantanamo Justice?

Guantanamo Bay Naval Base -- After seven and a half years locked up at Guantanamo, this week Omar Khadr finally met the seven US military officers who will decide his fate. Five men and two women were selected Wednesday to determine whether Khadr, accused of killing a US soldier in Afghanistan when he was 15 years old, is guilty of war crimes.

Although it's been eight years since the US first established military commissions to prosecute Guantanamo detainees, few cases have ever reached a jury. Khadr's is only the third trial to take place here, and the first under the Obama administration.

This week, 15 military officers were flown in from US bases around the world as potential jurors (or as they are known here, commission panel members). For two days, lawyers for both sides probed their views on the military commissions, Guantanamo, justice, and the prospect of trying someone as a war criminal for offenses committed at age 15.

Khadr's trial has generated international controversy as the first US war crimes trial since WWII against an alleged former child soldier. However, Khadr's age at the time of his alleged offense generated little concern among the panel members. All of the 15 indicated that Khadr's age held no significance for the case.

When asked, most said they had no opinions about charging a 15-year old with war crimes. An Air Force Captain said that in his opinion, a child would need to be as young as five or six to avoid adult courts if accused of a homicide. "Where I grew up, as young as seven or eight you knew that if you take a gun, you run the risk of killing someone else."

Perhaps equally disturbing, few had any views about the US treatment of detainees at either Bagram Air Force Base in Afghanistan, where Khadr and hundreds of other detainees were first held, or at Guantanamo. Although allegations of torture in US custody have been widely reported, only two of the 15 members said they had any views on whether the US was treating detainees at Guantanamo in a humane manner.

The issue of detainee abuse will be central to the trial, as the main evidence against Khadr are statements that his lawyers contend were extracted following torture. One of Khadr's interrogators admitted threatening him with rape and possibly death. His lawyers contend that Khadr was suffocated to the point of passing out, revived, and then suffocated again; threatened with barking dogs while a plastic bag was tied over his head; and forced into painful stress positions for hours at a time. On one occasion, he was interrogated for long periods without being allowed access to the bathroom; when he urinated on himself, interrogators used him as a "human mop."

When asked if they had any views on whether Guantanamo should be shut down, only three of the 15 indicated that they had an opinion. A Navy captain said that it was a "no-win situation," and that Guantanamo was problematic for the United States internationally. An Army Lt. Colonel said that Guantanamo has "eroded America's moral authority in the world" and that the US had lost its status as a "beacon of liberty and justice." He said that he agreed with President Obama that Guantanamo should be closed, citing a range of concerns, including prolonged detention without trial, renditions, and torture.

During jury selection the prosecution tried to exclude members of the panel who supported closing Guantanamo. While their effort to seat a sympathetic jury was understandable, their arguments were astonishing. A prosecution lawyer, Jeff Groharing, a former Marine, moved to dismiss the Army Lt. Colonel, telling the judge that the panelist had a "decidedly hostile attitude" toward the government because he had "repeatedly said that he agreed with the president" that Guantanamo should be closed. The prosecution also cited the Lt. Colonel's disagreement with former Attorney General Alberto Gonzalez on torture as further evidence of his "hostility" to the government. Apparently the prosecution believes that someone who agrees with the current US president is hostile to the government, but someone who agreed with the former Bush administration is not.

The judge rejected the challenge, stating that each of the potential panel members had pledged to set their personal opinions aside while deliberating the case. In fact, of the seven members ultimately selected for the panel, the most senior ranking member was the Navy captain that described Guantantamo as a "no win" situation for the United States.

The panelists all appeared to take their responsibility very seriously, and pledged to ensure that Khadr received a fair trial. They agreed with the basic principle that Khadr is innocent until proven guilty beyond a reasonable doubt. One Air Force Colonel said "we owe it to our legal system to do it right" and said he respected Khadr's military counsel for taking on the case.

The members of the panel seem intelligent and thoughtful. But that doesn't mean Khadr will get a fair trial. On Monday, the judge ruled that notwithstanding evidence of torture, all of the statements that Khadr made during his interrogations would be allowed as evidence.

The seven members of the panel will ultimately decide Khadr's fate. But their decision may well be tainted by torture and abuse.