American Civil Liberties Union

(Originally posted on Daily Kos.)

An unavoidable consequence of creating a new and ad hoc justice system on the fly is that issues that would be simple and routine in an ordinary criminal trial end up raising questions that are novel and highly contested. This has been a regular feature of the Guantánamo military commissions. We travel here to observe "pre-trial proceedings" with the expectation that the cases will be moving towards trial — only to find out that, because of some arcane dispute about what the new rules mean, trial has become even more remote.

Thanksgiving weekend's big national security story was the continuing operation of a "black jail" at Bagram, where detainees are held for weeks in completely secret detention. Not even the Red Cross is notified about or given access to prisoners and their families, and have no idea where they are. Marcy Wheeler writes:

…I can't help but note that this story came out just weeks after the Center for American Progress' Ken Gude floated sending military detainees from Gitmo to Bagram. And just after two of the Administration officials focused on doing the right thing with Gitmo left the Administration.

Valtin also notes at Daily Kos that the news also came a few days before last night's speech by President Obama announcing troop escalation in Afghanistan. And Spencer Ackerman reports that Gen. Stanley McChrystal will testify on Capitol Hill next week about the new strategy.

Earlier this afternoon, the Senate voted to table (a fancy word for defeating) an amendment that was proposed by Sen. James Inhofe (R-Okla.) to the military construction appropriations bill. The Inhofe Amendment would have prohibited the Department of Defense from using any funds under the bill to modify or construct any facilities in the U.S. to hold any of the Guantánamo detainees, including those charged, tried, or convicted in regular federal courts.

With today's announcement that the Justice Department will move five of the men accused of 9/11 crimes to federal court in New York, the question still remains about one of the other high-profile detainees: Omar Khadr.

The world knows Khadr as one of the child soldiers detained at Gitmo since he was 15. (The other child soldier, Mohammed Jawad, was released back to Afghanistan after the government failed to produce enough credible evidence to bring charges against him.) Khadr is accused of throwing a grenade that killed an Army medic in Afghanistan, a charge that the U.S. government itself later threw into question by accident during one of his pre-trial hearings: