Making It Up As We Go Along

(Originally posted on Daily Kos.)

At least 30 journalists and human rights observers descended on Guantánamo this week to witness the pretrial hearings in the case of Canadian Omar Khadr. Now 23, Khadr was 15 when he was captured by U.S. forces in Afghanistan for allegedly throwing a grenade that killed a U.S. medic. Khadr will be the first person prosecuted in a military commission under President Obama, and the second person selected for military commissions trial who was a juvenile at the time of his alleged offenses.

Khadr is an alleged child solder who was taken by his family to a war zone and subsequently mistreated for years in U.S. detention. And today’s hearing felt truly experimental: no one in the courtroom was even familiar with the procedural rules for the military commissions, which prosecutors and defense lawyers saw for the first time only after the case was scheduled to begin this morning, reportedly about 15 minutes after the judge received a copy.

For judges and lawyers who have spent any time in a federal court or a military courts-martial, a situation where no one knows the rules when stepping into court is inconceivable.

After the commissions were “fixed” last year with the passage of the Military Commissions Act of 2009, the Defense Department should have issued a new set of procedural rules, called the Manual for Military Commissions, to give crucial guidance on how to implement the law in the courtroom. Rules of procedure are standard in any legal proceeding, but at a 5:30 p.m. press conference Tuesday night, the prosecution’s own spokesperson, Navy Capt. David Iglesias, announced there was still no manual and the prosecution planned to proceed without it. Former chief military prosecutor Col. Morris Davis remarked to the Washington Independent, “it appears we’re still trying to lay the tracks after the train has left the station, which is no way to run a railroad or a criminal justice system.”

Two hours after the press conference, the news reached Guantánamo that Secretary of Defense Robert Gates had signed the manual that evening. The 281-page manual, which contains relevant guidance on how to deal with the motion before the military commission today, wasn’t released to the judge, prosecutors, or defense lawyers in Khadr’s case until Wednesday morning. The judge had to recess until the afternoon so that he and the lawyers could read as much of the new rules as possible.

Speaking of those rules: The new guidelines for pleading guilty to charges that carry the death penalty remain unclear and raise constitutional questions. The guidelines also don’t allow judges to give credit for time served in U.S. military custody, a shocking new rule that doesn’t take into account the several years many of these defendants have languished at Gitmo without charge or trial.

The Defense Department was criticized for its lack of transparency in developing the new manual, most notably the National Institute of Military Justice, which said in a statement (PDF) “There is no excuse for excluding public participation.”

Today’s uncertainty and confusion in the courtroom are the predictable result of the military commissions system where the rules are being made up as we go along. What struck me sitting in the courtroom is how unnecessary today’s courtroom circus was. At issue this week is whether Omar Khadr’s past statements to interrogators were made under coercion or torture, and should therefore be excluded from trial. The new rules contain some guidance on how to handle this issue, but the rules are untested.

In contrast, the federal criminal justice system has rules on the use of coerced statements that have been developed over centuries. A new rule book simply isn’t necessary if we transfer the Guantánamo cases to our tried and tested federal courts.

The Toronto Star was the first to report that the prosecution offered Khadr a plea offer of a five-year sentence, but his lawyers rejected it. Spencer Ackerman at the Washington Indpendent, who’s among the press corps in Guantánamo, reported:

Breakfast conversation among reporters was garnished with speculation about whether the rejected plea offer means the prosecutors at the Defense Department’s Office of Military Commissions think they can’t win the suppression hearing — meaning a lot of evidence against Khadr wouldn’t be entered into court when his military commission properly begins in July — or that they don’t want the flagship case of the Obama era to be one against a defendant captured and mistreated when he was 15 years old.

As we’ve said countless times, the best and most humane approach is to release Khadr from Gitmo and repatriate him to Canada, or if evidence against him warrants, send his case to U.S. federal criminal court. Stop treating this young man, who’s spent a third of his life imprisoned in Gitmo, as a lab mouse in this never-ending military commissions experiment.