At 5 p.m. on Friday, a jury of military officers sentenced Sudanese detainee Noor Uthman Muhammed to 14 years in prison. Shortly afterward, a military judge announced that under Muhammed's plea bargain agreement, he will serve almost three more years at Guantánamo, on top of his nearly nine years of detention (8 1/2 at Guantánamo). The jury's 14-year sentence is entirely symbolic, as Muhammed will serve the three-year sentence worked out in his plea deal, just like Gitmo detainees Ibrahim al-Qosi and Omar Khadr, who cut plea deals in July and October. (In al-Qosi's case, though the jury sentenced him to 14 years, he is serving only two additional years at Gitmo, and though the jury sentenced Khadr to 40 years, he will return to Canada within a year, where he will serve up to seven more years if he's not paroled earlier.) Under military commission rules, Gitmo detainees cannot get credit for their pretrial detention.

Earlier on Friday, defense lawyer Capt. Christopher Kannady gave his closing argument capping the sentencing hearing. Capt. Kannady emphasized what I certainly felt after Thursday's proceedings, in which much of the evidence the prosecution presented in support of its case didn't even mention Muhammed: "The fact of the matter," he said, "is that very little of this evidence refers to or even mentions Noor."

Revisiting Muhammed's history at an Afghan training camp known as Khalden, first set up to fight the Soviets, Capt. Kannady argued that al-Qaeda wasn't even around or in operation at the time that Muhammed joined the camp. Said Capt. Kannady, "You will never see evidence that Noor was a member of al-Qaeda just as you will never see evidence that Khalden was an al-Qaeda training camp." According to the defense, the minimally educated Muhammed never had the interest or the ability to become anything more than a low-level functionary. Early into his time at Khalden, said Capt. Kannady, Muhammed asked to be removed from his weapons training responsibilities and instead took on duties such as collecting and delivering food. Muhammed's travel documents had been taken away, and without skills or resources to move elsewhere, Muhammed remained at the camp until its closure—the undisputed cause of which was that Khalden camp's leader did not agree with the ideologies of either the Taliban or al-Qaeda.

"The government has had almost a decade to go over all the evidence," said Capt. Kannady, referring to the over 1,000 pieces of evidence taken from tortured Guantánamo detainee Abu Zubaydah's safehouse, which tested negative for Muhammed's fingerprints. "The government needs to box this evidence up and save it for Abu Zubaydah's trial." Capt. Kannady cautioned the jury, "You may not sentence [Muhammed] for the offenses of others," reminding the members that Muhammed is "pleading guilty for supporting the people he supported for many years…[but] he's not a small piece; he's a sliver."

Capt. Kannady also referred to Muhammed's allegations of abuse while in U.S. custody at the prisons in Bagram, Afghanistan, and at Guantánamo. On Thursday, Muhammed's unsworn statement was read aloud to the jury. According to his statement, Muhammed was particularly tormented when both Pakistani and American guards told him that he could be handed over to the Egyptians at any time to be tortured "and no one would ever know that I had disappeared. …The fear and uncertainty this caused me were overwhelming."

In his statement, Muhammed also detailed has abuse at Bagram: being hooded and handcuffed with this hands above his head for 12 hours a day, short shackling in stress positions on his knees, extreme cold and heat, deafening music 24 hours a day, and the humiliation he experienced when female soldiers would touch him or watch him as he was undressed. He spoke about the terror he felt in his two years of solitary confinement at Camp 5 here at Guantánamo and about "a very dark interrogation room…that the detainees called ‘hell.'"

It is distressing that more than eight years after the first detainees were brought to Guantánamo and over a year after President Obama's missed deadline to close Gitmo, the sentencing of a small fish like Muhammed, who likely gave up on getting a fair trial in the military commissions, is all we have to show for our compromised values. The government should, long ago, have brought anyone against whom it had evidence to support prosecution to our federal courts, where criminals are tried every day, and repatriated and resettled the rest.

(Cross-posted to Daily Kos.)

Yesterday was an emotional day of testimony from widow Tabitha Speer and Omar Khadr. As a reminder, on Monday, Khadr pled guilty as part of a plea agreement to all of the charges against him, including throwing a grenade that killed Sgt. Christopher Speer eight years ago. We are now in the sentencing phase of the case.

In eloquent testimony, Sgt. Speer's widow, Tabitha, testified about the impact of her husband's death on their 11-year-old daughter, Taryn, and 8-year-old son, Tanner, who was so young at the time of Sgt. Speer's death in Afghanistan that he does not remember his father. Tabitha read to the court letters from her children to Khadr, and showed photos of Sgt. Speer with their children.

Mrs. Speer said of Khadr, "Everyone wants to talk about how he's the victim, he's the child. I don't see that. The victims, the children, are my children."

Mrs. Speer's emotionally affecting testimony drove home again the tragedy of her husband's death in combat. Had this case been brought in federal court, where the legitimacy of the system is not in question, it would have been resolved long ago and Sgt. Speer's family would have had some measure of closure. (More than 1,200 U.S. service members have been killed in Afghanistan since 2001, but Sgt. Speer's killing is the only one to be prosecuted as a war crime in a military commission proceeding. Because battlefield killing is not a violation of the laws of war, an alleged murder would usually be handled in domestic criminal courts.) And Omar Khadr, who was just 15 when he was captured by U.S. forces, would not have languished in detention for eight long years awaiting trial.

Yesterday, Mrs. Speer's moving testimony understandably captured the headlines. What seems to be missing from news coverage is a critically important — and likely unconstitutional — ruling by the military judge, Col. Patrick Parrish. Col. Parrish ruled that no evidence about Khadr's abuse in U.S. custody could be put before the jury to consider in sentencing.

This ruling is deeply problematic on any number of grounds. In any U.S. sentencing proceeding — whether in federal, state or military court, and regardless of whether a judge or jury decided the sentence — it would likely be a violation of the Eighth and 14th Amendments for evidence of harsh pre-trial detention conditions and abuse in custody not to be a mitigating factor in sentencing. Federal sentencing law also unequivocally states that there should be no limitation placed on background information about a defendant. Under both federal procedure and the rules governing regular military courts-martial, evidentiary standards are relaxed during the sentencing phase of a case. It is virtually inconceivable that, in any forum other than these military commissions, a judge would prohibit evidence of coercion and abuse — especially of a juvenile, as Khadr was — as a mitigating factor. (And indeed, a defense lawyer who failed to raise harsh conditions or mistreatment as mitigation of sentence would risk a strong claim of ineffective assistance of counsel, which is a violation of the Sixth Amendment.)

Apparently disregarding established law and procedure, in the military commissions, Col. Parrish seems to be able to make up his own rules.

The judge therefore ruled that the jury cannot see sworn pre-trial testimony in this case from an Army medic at Bagram who saw Khadr hooded and chained in a cagelike cell with his arms suspended from a metal grate. At the time, Khadr was 16 years old and still recovering from two gunshot wounds in his shoulder and back.

The judge also ruled that the jury cannot see previous testimony from Joshua Claus, identified only as "Interrogator One" in the military commissions, who told Khadr a fictitious story about a young Afghan sent to an American prison, where he was gang-raped and possibly killed by "a bunch of big black guys and big Nazis," because he didn't cooperate with interrogators. Claus was Khadr's primary interrogator at Bagram, and was later court-martialed for detainee abuse leading to the death of a detainee.

The jury will never hear testimony that Khadr was taken to Bagram near death and interrogated two weeks later while the 15-year-old was sedated and handcuffed to a stretcher. Nor will the jury hear about how during Khadr's subsequent detention at Guantánamo, he was subjected to the "frequent flyer" sleep deprivation program and says he was used as a human mop after he was forced to urinate on himself.

Yesterday's indefensible ruling is emblematic of an untested legal process where a judge can make up the rules, to erase evidence and allegations of abuse from the record before a jury.

(Cross-posted to Huffington Post and Daily Kos.)

Earlier today, Omar Khadr pled guilty to all charges against him, averting a full-blown military commissions trial that was slated to restart today. A sentencing hearing will commence tomorrow. (But like Ibrahim al-Qosi before him, his actual sentence — reportedly one more year at Gitmo, and seven more to be served in Canada — has already been negotiated; the sentencing hearing will only matter if the jury delivers a sentence shorter than the one negotiated.)

Khadr is the youngest of Guantanamo's remaining 174 detainees. Captured eight years ago at the age of 15, Khadr turned 24 since I was last here in August, when his trial was abruptly cut short by his lawyer's collapse in court. Khadr is accused of throwing the grenade that killed Delta Force Sgt. Christopher Speer in a firefight in Afghanistan.

Over a week ago, reports surfaced a plea deal was in the works that would have Khadr serve a sentence of eight years, with one year to be served in isolation in Gitmo and seven years in Canada, on top of the eight years he's already served. Such an arrangement requires the assent of the Canadian government, and an exchange of diplomatic notes, which occurred Saturday. On Friday, Hillary Clinton and Canadian foreign minister Lawrence Cannon discussed the Khadr case, but no more details about the rumored plea deal and diplomatic negotiations were made public.

On Friday, I flew here with 26 journalists, half of whom are Canadian, and four NGO observers also here to observe Khadr's case. Also on board were several witnesses expected to testify at Khadr's sentencing: Sgt. Speer's widow, Tabitha; Layne Morris, the former National Guard soldier blinded in one eye by the grenade Khadr is accused of throwing; and psych experts for the prosecution and defense.

Also on the Pentagon flight was a State Department spokesperson, whose first-time presence is probably an indication of the Obama administration's concern that this case, the first war crimes prosecution of an alleged child soldier since WWII, undermines U.S. legitimacy overseas.

Yesterday, when reporters asked Edney why Khadr might plead guilty, he said, "There's not much choice." Edney added, "He either pleads guilty to avoid trial or he goes to trial, and the trial is not a fair process."

Indeed, the prospect of trial in the illegitimate military commissions system was an awful one. Khadr could have faced life imprisonment if convicted. Self-incriminating statements that were coerced out of him by interrogators at Bagram and Gitmo were to be used against him at trial. And under a new military commisions rulebook issued in the spring, he could not get credit for the eight years he has already served. Omar Khadr's entire military commissions experience thus far has been a circus spanning several years, 11 lawyers, more than three arraignments, and multiple sets of rules since he was first charged in 2004. It has been plagued by legal and procedural problems since the beginning, and any result at trial would probably have been subject to years of appeals.

Despite today's good news that a trial has been averted, Khadr's case is emblematic of a set of fundamental flaws of the military commissions that won't be resolved by a plea deal. These tribunals are simply incapable of providing fair trials, and they ought to be shut down altogether. Individuals accused of terrorism-related crimes should be prosecuted in federal courts. Those courts have shown over and over again that they are capable of delivering results that are both legitimate and seen as legitimate.

Opening statements began in the first trial under Obama's military commisions yesterday, and the prosecution called their first two witnesses against Canadian Omar Khadr. The youngest of Guantanamo's remaining 176 detainees, Khadr was captured in Afghanistan eight years ago, when he was 15 years old.

Khadr is accused of throwing the grenade that killed Delta Force Sgt. Christopher Speer. Sgt. Speer's widow, Tabitha Speer, observed the trial today, dabbing her eyes with a tissue when witnesses described her husband's mortal injury in the firefight that preceded Khadr's capture.

More than 1,200 U.S. servicemembers have been killed in Afghanistan since 2001, but Sgt. Speer's death is the only one being prosecuted as a war crime. In fact, this trial is the first prosecution in history for murder in violation of the laws of war (murder is not a recognized war crime; it is usually handled in domestic criminal courts).

Prosecutor Jeffrey Groharing said in his opening statement, "This trial is about holding an Al Qaeda terrorist accountable for his actions and vindicating the laws of war." Defense lawyer Army Lt. Col. Jon Jackson told the jury in his opener, "Omar Khadr did not kill Sgt. Speer. He has been waiting eight long years to tell you that. To tell somebody who can finally listen and who can finally make a difference." He said the only reason Khadr was in the compound where the firefight occurred was because Khadr's father "hated his enemies more than he loved his son."

After opening statements, the Special Ops commander who led the assault on the compound (who can be identified only as Col. W because of a court order protecting his identity), testified about a report he wrote hours after the battle, in which he reported that one of his shooters killed the enemy who threw the grenade that killed Sgt. Speer. His report also noted that in addition to the enemy forces his men had killed, there was one wounded, Khadr. Years later, after an investigative team from the Guantanamo military commissions visited Col. W about the case against Khadr, he altered his copy of the report to indicate that the enemy who killed Sgt. Speer was "engaged" by the Special Ops shooter, not "killed."

A U.S. commando, identified as Sgt. Maj. D, also testified today that there were two individuals alive in the compound when the grenade that killed Sgt. Speer was thrown. He said that after the grenade came from an alley, he shot and killed an adult male in the alley, then shot another sitting with his back to him — Khadr.

None of this testimony is news to those who have followed the case, as these factual issues were raised in pretrial hearings long ago. Given the reasonable doubt cast by today's evidence — not to mention Khadr's age at the time the alleged crime was committed — it is hard to fathom why this case was chosen as the first test case of the Obama-era military commissions.

The first day of the trial ended abruptly when, while cross-examining Sgt. Maj. D, Khadr's defense lawyer collapsed. Lt. Col. Jackson had asked for a momentary pause, stood at attention until the last juror filed out of the courtroom for a five-minute recess called by the judge, and collapsed. The first to come to his aid was the case's chief prosecutor, Jeffrey Groharing, who kneeled down and loosened Lt. Col. Jackson's tie. He was taken out of the courtroom on a stretcher.

Lt. Col. Jackson is the lone defense attorney for Khadr; he is up against four prosecutors who are trying the case. It is unclear what his prognosis is, and how it will affect the trial schedule, but it is inconceivable that the case could continue without Khadr's sole lawyer.

(Originally posted on Daily Kos.)