Yesterday was the third attempt by the US Court of Military Commissions to arraign Omar Khadr, captured in Afghanistan at the age of 15. He is now 21.
Mary Shaw, writing at the Smirking Chimp has provided an eyewitness report of the event from Jumana Musa, an attorney who serves as Advocacy Director for Domestic Human Rights and International Justice for Amnesty International USA. It is repeated in full below. (Emphasis mine)
Live from Guantanamo: unfair pretrial proceedings for Omar KhadrThere is a litany of problems with all of this. While I do not normally suggest Wikipedia as a reliable reference, if you need to come up to speed on the entire case, it provides everything in one place.November 9, 2007
Today was the US government's third attempt at arraigning Omar Khadr. Khadr walked into the commission room today looking much more engaged than he did at his last appearance before the commission. Unlike his appearance in June, where he looked disheveled and dead to the world, today Khadr walked into the court room wearing what looked like white scrubs and slip on sneakers. His curly hair was tucked into a skull cap and his medium length beard was neatly trimmed. He seemed very engaged in the process, at times looking around the commission room and at one point smiling towards the gallery. He spent much of the hearing with his head cocked to the side, appearing to listen intently to the proceedings.
Initially, the hearing was scheduled so the judge could conduct a mini-hearing within a hearing to determine whether or not military commissions had jurisdiction over Khadr and could properly try him. This past June, the military judge in the case threw out the charges against him because there had been no previous determination. The issue at hand was a provision in the Military Commissions Act (MCA) which included a provision stating that in order for the commissions to have the ability to try Khadr, there must be a determination that he was an "unlawful enemy combatant." The Combatant Status Review Tribunals (CSRTs) convened by the Bush Administration to determine status never reached such a finding, instead confirming "enemy combatant" status. Since the MCA distinguishes between lawful enemy combatants and unlawful enemy combatants, the military judge found that such a determination was not sufficient to confer jurisdiction on a detainee and threw out the charges against Khadr. In addition, the military judge also found that not having jurisdiction, it would be in appropriate for him to conduct a hearing to determine Khadr's status.
In September, the Court of Military Commissions Review (CMCR), an intermediary appeals court created by the MCA, held that while the CSRT determination was not sufficient to find jurisdiction, the military judge could hold a status determination hearing to decide whether or not Khadr meets the definition of an unlawful enemy combatant. Initially, the purpose of today's hearing was to make such a determination, however when we arrived in the commission room we encountered a different hearing all together.
At first it appeared that the military judge was cautious about proceeding in the face of a pending appeals court decision. He even made mention of the fact that three years ago on this same day, proceedings were stayed in the Hamdan case by a federal judge. Later it could become clear that the more fundamental issue was one of witness testimony. The prosecution had brought two witnesses to testify about Khadr's status. One of them was an FBI agent who had yet to talk to the defense. It was later revealed in a press conference that the prosecution had recently revealed that there was an additional witness not on the base who may have exculpatory evidence, or evidence that could potentially clear Khadr of some of the charges made against him. This witness has apparently been known to the government since the time of Khadr's arrest, and was recently disclosed by the prosecution. In meetings between the prosecution, defense and judge, it was decided that they would not go ahead with the status determination, giving the defense an opportunity to pursue this lead.
The judge did go through Khadr's right to counsel. At his last hearing, Khadr had fired his American attorneys and requested that he be represented by his Canadian attorneys. At issue is the rule that specifically prohibits any attorney who is not a US citizen from representing anyone before the commission. A non US national can serve as a only as a "foreign attorney consultant" and advise the case. This time, when asked if he wanted to keep his detailed military defense counsel and detailed assistant defense counsel, he responded in the positive.
Once the issue of representation was settled, the defense went forward with a voir dire of the military judge, which is the opportunity to ask the judge questions to establish his fitness to serve. There were a few stunning revelations during the questioning. In one exchange, defense counsel asked the military judge about his understanding of the 2006 Hamdan decision, which threw out the previous commissions created by the President. The judge responded that the Court ruled that in order to hold commissions, the President had to go to Congress for authorization. When pressed on whether or not he agreed that the Court held that the commissions were illegal and that they violated common article 3 of the Geneva Conventions (which, among other things, mandates that trials must be fair), judge replied that the Court referred to common article 3 and that to hold commissions the President had to go to Congress. The defense attorney then read the judge the relevant portions of the decision in which the court did say the commissions were illegal and that common article 3 applied. The fact that the judge could not either remember or would not concede the plain language of the Supreme Court decision that ruled on the previous commissions was disturbing to say the least. It was this decision that laid the groundwork for the MCA and the new commissions over which he presides.
An order issued before the proceedings as well as his answers during the voir dire were also cause for concern. In his order, he stated that in arguing Khadrs status, the attorney's could not cite international law or constitutional law. During the proceedings, when asked what rules he was bound by, he responded that he was bound by the MCA, the manual for military commissions and other subsequent rules - no other source of law. It is difficult to fathom how a judge in a US system is not bound by either the constitution or international law, especially when the determination being made is based on the laws of war which itself is based in nothing but international law. This judge, however, seems to feel he needs nothing more that the legislation Congress passed last fall and the rules that were promulgated to implement it to make these complex and cutting edge determinations.
The truly stunning moment came when defense counsel asked the judge what his understanding of Al Qaeda was. He responded that based on general reports, Al Qaeda is an organization/group dedicated to the spread of Islam. Anyone who has watched a news report or read a newspaper since September 11, 2001 is aware that Al Qaeda is known to be a terrorist organization, and is designated as such by the US government. It belies an underlying prejudice to take a group that has claimed responsibility for several mass attacks on civilian populations on at least four different continents and interpret it as a group that purports to spread a religion. This conflating of religion and terrorism is compounded by the fact that this particular judge, in this particular system, will exclusively adjudicate the cases of Muslim men. It calls into question how any Muslim man who enters his court can expect a fair trial, when they are associated with terrorism by the way in which they worship, not the acts they committed.
At the end of the day, the judge in the case did find himself fit to serve on this commission, denying a challenge by the defense team. He also cut off a prosecution attempt to put forth some of the evidence that they believed would prove that Khadr was an unlawful enemy combatant. The matter of scheduling was left to a future meeting between the judge, prosecution and defense. We walked out of the commission building which is up on a hill, overlooking an old airport hanger and airstrip which is now called "Camp Justice." This tent city, having all the appearance of a refugee camp in a war torn country, is intended to facilitate the holding of multiple hearings at a time. It will house the lawyers, the press, the staff and the NGO observers, as well as create two additional commission rooms (currently there is only one). What it does instead is betray the very temporary nature of this shakily constructed "legal" system, which can be folded up and taken away at any time. It is a physical manifestation of the transitory nature of these commissions, which have been resurrected many times but survive only of life support.
Jumana Musa
Under any other circumstance, Khadr would be considered a child-soldier. However, under the Combatant Status Review Tribunal, Khadr was declared an enemy combatant. Even under the 1949 Geneva Convention, ignoring the fact that Khadr was only 15 at the time of his capture, that term (a Bush administration construct) provides protection under article 3 of the convention.
The United States, which acknowledges the international definition of a child-soldier, confined Khadr with the adult population in Guantanamo. This despite the fact that other child-soldiers were confined in a separate facility complete with educational, recreational and cultural resources. All reports from that facility indicate that the detainees were treated well, were not subject to isolation, were not abused and were not subject to torture.
The combat action after which Khadr was captured is being used as the basis for charging him with offenses including murder, conspiracy, attempted murder and aiding the enemy. The caveat applied was that he was an unpriviledged belligerent, suggesting the laws of war contained in both Hague and Geneva conventions did not apply to him and that somehow there were unique circumstances which removed his protection under both article 4 and article 6 of the 1949 Geneva Convention. This was the Alberto Gonzales "quaint" description of the conventions which he said did not apply to the situation in Afghanistan. Gonzales has never been able to support his assertion.
The only problem is, the Bush administration, and this particular judge, see no compelling requirement to abide by either international law (ratified by the US, therefore US law) nor US constitutional law. The only law which Bush and the judge accept as possessing any validity is a law which was custom written by the Bush administration after the alleged events took place and then administered by military courts in clear violation of the laws of war.
The Hamdan decision saw the charges against Khadr thrown out since the establishment of the Military Commissions by Bush presidential fiat was deemed, by the US Supreme Court to be outside the rule of law and in violation of the laws of war - the international laws of war. That would bring about another opportunity to make the point again that Khadr was a child-soldier.
Khadr had been taken into the al Qaeda camps at the age of 11 by his Father. He was captured at the age of 15. He was not an adult. In any other conflict the international community, the US included, does not hold child-soldiers responsible for actions which are far more heinous than Khadr is alleged to have committed.
The Bush administration was having none of it and issued new charges. This time they were murder, attempted murder, conspiracy, providing material support to terrorism and spying. The caveat now employed was "in violation of the law of war".
Again, these new charges were specifics of law which did not exist at the time Khadr, a child-soldier, was captured.
Regardless, those charges were dismissed by a US Army judge who made the distinction between an "alien unlawful enemy combatant" and a "lawful enemy combatant". Khadr, although a child-soldier, had already been declared an "enemy combatant" by the Combatant Status Review Tribunal. The judge declared that the Military Commission had no authority to try a lawful enemy combatant.
That was appealed and the Court of Military Commissions Review decided that the Military Commissions did have authority to try lawful enemy combatants. The charges, originating from laws written post-event, were re-instituted.
It needs to be noted that the caveat "in violation of the laws of war" represents something very strange. If the US is proceeding with charges which arise from the laws of war, they themselves are in violation of US ratified international conventions.
In order to find Khadr guilty of the charges brought against him he must be declared an "alien unlawful enemy combatant". That is the only way that the protections of the Geneva Conventions can be removed from him. And it is the presiding judge, who has stated that he is not bound by any other law than that which establishes the Military Commissions, who will decide on the status of Khadr.
The judge now has a problem. The US "law of war", is the international law of war (rules of armed conflict). It says so in DoDD 2311.01E paragraph 3, article 3.1.
3.1. Law of War. That part of international law that regulates the conduct of armed hostilities. It is often called the “law of armed conflict.” The law of war encompasses all international law for the conduct of hostilities binding on the United States or its individual citizens, including treaties and international agreements to which the United States is a party, and applicable customary international law.The judge, however, has stated that he is not bound by either the Geneva conventions nor US constitutional law; just the Military Commissions Act of 2006. That act conveniently side-steps US treaty obligations, even though they are US law, under the Geneva conventions.
In order to provide shelter to this and other judges, something had to be written to attempt to absolve them of any wrong-doing. This is what the judge is using as guidance:
SEC. 6. IMPLEMENTATION OF TREATY OBLIGATIONS. (a) IMPLEMENTATION OF TREATY OBLIGATIONS.— (1) IN GENERAL.—The acts enumerated in subsection (d) of section 2441 of title 18, United States Code, as added by subsection (b) of this section, and in subsection (c) of this section, constitute violations of common Article 3 of the Geneva Conventions prohibited by United States law. (2) PROHIBITION ON GRAVE BREACHES.—The provisions of section 2441 of title 18, United States Code, as amended by this section, fully satisfy the obligation under Article 129 of the Third Geneva Convention for the United States to provide effective penal sanctions for grave breaches which are encompassed in common Article 3 in the context of an armed conflict not of an international character. No foreign or international source of law shall supply a basis for a rule of decision in the courts of the United States in interpreting the prohibitions enumerated in subsection (d) of such section 2441. (3) INTERPRETATION BY THE PRESIDENT.— (A) As provided by the Constitution and by this section, the President has the authority for the United States to interpret the meaning and application of the Geneva Conventions and to promulgate higher standards and administrative regulations for violations of treaty obligations which are not grave breaches of the Geneva Conventions. (B) The President shall issue interpretations described by subparagraph (A) by Executive Order published in the Federal Register. (C) Any Executive Order published under this paragraph shall be authoritative (except as to grave breaches of common Article 3) as a matter of United States law, in the same manner as other administrative regulations. (D) Nothing in this section shall be construed to affect the constitutional functions and responsibilities of Congress and the judicial branch of the United States.What that says is that the US understands it is in breach of article 3 of the Geneva Convention, but that the president, without having to submit for interpretation to any other authority, national or international, can change the standard and accepts responsibility for any breach.
That is a justification to redefine and ignore a treaty ratified by the Senate of the United States of America - a treaty which emerged after long and arduous trials of those who had committed breaches of law, both clear and sometimes hazy. Those trials and subsequent treaties made it clear that even if a national leader assumes full responsibility for an unlawful action, the responsibility lies with the individual carrying out that action. To obey instructions which are unlawful is to commit an act which is unlawful.
The Nuremberg Trials.
The judge in the Khadr case is one step away from committing a well-established international criminal act for which others have been hanged.
(Thanks to Cheryl for research)
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