Monday, June 04, 2007

Omar Khadr Beats GITMO -- For Now

On May 23, Senator Tom Harkin (IA) introduced the “Guantanamo Bay Detention Facility Closure Act of 2007.” The proposed legislation requires the president to close the Department of Defense detention facility not later than 120 days following enactment of the bill into law.

Like Abu Ghraib, “GITMO” has become a by-word around the world for mistreatment of prisoners by the U.S. and violations of Common Article III of the Geneva Conventions. Lawyers for some of the detainees have spoken of the despair that afflicts some of the prisoners, especially among those who have been incarcerated there for the more than five years since the first temporary confinement facility, Camp X-Ray, was opened in January 2002. Despair has led to four suicides and more than two dozen unsuccessful attempts, with the last suicide just this past May 31.

Since the beginning of the year, DoD has been moving forward to exercise the flawed tribunal procedures afforded it under the Military Commissions Act of 2006. This law curtails rights and protections of detainees that, were proceedings held in the “normal” U.S. military court system using the Manual for Courts-Martial and the Uniform Code of Military Justice or in the federal civilian court system, would be afforded them.

Until today, only one arraignment had been held – a very abbreviated one in which the “Australian Taliban” David Hicks agreed to a plea bargain in which he “confessed” to providing material support to the Taliban. He was then allowed to return to Australia – and Aussie government expense – to serve the remaining nine months of his “sentence.”

On June 4, a second, much more contentious procedure began – and then ended abruptly when the military judge ruled that he had no jurisdiction in the case.

The entirely unexpected ruling came in the opening minutes of the arraignment of Omar Ahmed Khadr, a Canadian by birth whose family, according to U.S. military prosecutors, had ties with al-Qaeda and Osama bin Laden (with his father and brothers he moved to Afghanistan where at one point they were living in the same compound with bin Laden).

The ruling came on a matter of language: Omar, who had been at Guantanamo for some five years, had been classified as an “enemy combatant” by the “combatant status review tribunal” (CSRT) created by President Bush’s Military Commissions Order Number 1 of March 2002. After these commissions were ruled unconstitutional by the Supreme Court in 2006, Congress passed the Military Commissions Act in late 2006 which empowered the Pentagon to conduct trials before special military courts of those classified as “alien unlawful military combatants.” Because this was not the staus assigned to Omar, the judge ruled that Omar could not be tried for war crimes at GITMO.

The controversy that was expected, over Omar’s age and status as a “child soldier” – he was 15 or younger at the time of his alleged war crimes: murder and attempted murder of U.S. soldiers, conspiracy, proving material support, and spying – never came up because of the military judge’s ruling.

This will likely prove only a temporary delay because the Bush administration will probably direct the Pentagon to have the Guantanamo CSRTs amend the classifications they use to conform to the definition in the Military Commissions Act. While the White House might press for Congress to amend the act, the chance that a Democratic Congress would comply must be considered low.

While the controversy over Omar’s age – and therefore his classification as a “child soldier” under international law – seemed like it would be front and center early in the trial, what remains equally suspect about the prosecution’s case is the charge of murder or attempted murder in violation of the laws of war. It is precisely the fact that a state of armed conflict exists that lifts the killing or the attempted killing of an armed opponent on what is clearly a field of battle (as evidenced by the use of automatic weapons, hand grenades, and combat aircraft), out of the category of murder for which a combatant could be tried in a civil court.

To fall back on the lack of a “uniform” as the basis for a murder charge may be the government’s rationale, but this could not have been known at the time the U.S. forces surrounded the compound occupied by Omar’s group. From the volume of fire emanating from the compound there could be no doubt that this group opposed the U.S. presence and that they were carrying and using their arms openly – that is, they were operating as a resistance movement.

Moreover, if the prosecutors insist that Omar is a criminal and it is necessary to try him for murder and the other “crimes” for which he stands accused, the proceedings should follow the standards of fairness and due process recognized by most civilized nations.

So what does all this have to do with Senator Harkin’s proposed legislation? Today’s ruling is another in a long and growing list of administration missteps that make any “trials” or other legal proceedings at GITMO highly suspicious to non-Americans. In fact, GITMO proceedings have become such a legal and public relations fiasco that they call into question whether the United States still recognizes the rule of law as the basis for public policy decisions.

Secretary of Defense Robert Gates has already urged the president to close GITMO; it’s time for another, stronger push – one backed this time by the American people.


Blogger rasphila said...

First-rate analysis of the flaws in the military tribunal system and the need to close GITMO as soon as possible. Once the Bush administration ends, there will have to be a lot of changes, starting with restoring due process of law. We can't afford not to do this if we want to have any friends left in the international community.

I had hoped that Khadr's defense might be able to make the argument that he was a child soldier because a win on that defense would have established some good law. But the whole GITMO/tribunal setup is so deeply flawed that the judge's action should have come as no surprise.

9:16 AM  
Anonymous kindlingman said...

Could you kindly describe what you mean specifically by this: "rights and protections of detainees that, were proceedings held in the “normal” U.S. military court system using the Manual for Courts-Martial and the Uniform Code of Military Justice or in the federal civilian court system, would be afforded them."?
Perhaps another posting on just this topic would be appropriate.

7:41 AM  

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