I've been observing the military commissions since 2004, and Guantánamo never felt more surreal or otherworldly than it did in what we hope were its final days of operation. On Martin Luther King Jr. Day, while then President-elect Obama prepared for his inauguration the next day, the Guantánamo military commissions charged forward with the pretrial hearing of Omar Khadr, the mental competency hearing of Ramzi Bin l-Shibh, and other proceedings in the case of the "9/11 defendants," the men charged with co-conspiring in the September 11 terrorist attacks.
Prior to the hearings on that Monday, the prosecution and defense teams in two cases filed a joint request to postpone the proceedings in anticipation of the changing of the guard in Washington. The military judges denied this request. Instead, "the show must go on" was the message in the days and hours before President Obama took the oath of office and had an opportunity to issue his executive orders. Neither prosecutors, defense lawyers, nor judges acknowledged during the Monday proceedings that there was an imminent change in the way the incoming administration would deal with the military commissions. Federal courts were closed on Monday in observance of Martin Luther King Jr. Day, but it was business as usual at Guantánamo. Ironically, even the Gitmo Gym was closed on Monday, but not the departing Bush administration's kangaroo courts! Three days later, President Obama issued executive orders to close Guantánamo within one year, suspend the military commissions, prohibit CIA prisons, and enforce the ban on torture.
The trial of Omar Khadr, captured in Afghanistan at age 15, was scheduled to start a mere six days after President Obama's inauguration. The ACLU joined a human rights coalition in early January and urgently called President-elect Obama to at least suspend the trial and take a fresh look at the case. Had Khadr's trial proceeded, the United States would have become the first western nation in recent years to hold a war crimes trial for crimes allegedly committed by a child. Our letter warned that proceeding with Omar Khadr's trial would require President Obama to flout international legal standards and practices that recognize that children used as soldiers should be treated as victims in need of rehabilitation and not prosecuted as war criminals by a military commission.
Khadr, who has spent a third of his life at the detention facility, looked much older than his 22 years. Appearing relaxed, he was focused on the pretrial suppression proceedings and closely followed the various statements made. The government shamefully disregarded Khadr's age at the time of his capture, and instead attempted to establish the youth's guilt by questioning him on associations his deceased father might have had with al-Qaeda when he was as young as 10 years old.
Khadr's pretrial hearing revealed another garish truth about the kind of thin evidence the government often uses in its fight against terrorism. An FBI agent testified on behalf of the prosecution, disclosing the government's deplorable reliance on testimony made by this traumatized teenager. Omar Khadr had made statements while still suffering from injuries he sustained from a firefight in Afghanistan that appeared to implicate Maher Arar, a Canadian citizen who was arrested in September 2002 while switching planes in New York's JFK Airport while returning home from a family vacation and then rendered to Syria for torture.
Khadr had been interviewed in Bagram on five separate occasions and was shown a photograph of Maher Arar. Khadr was unable to identify Arar by name. He offered interrogators little more than stating that Arar "looked familiar" from encounters they may have had at a safe house in Afghanistan. Apparently, these statements were the government's main basis to justify its rendition of Arar merely 36 hours after the traumatized 15-years-old told the interrogators what they hoping to hear. A 2006 Canadian Commission of Inquiry has since determined that Arar was in North America during the time in question, and cleared him of any wrongdoing or links to terrorism, and awarded him over $10 million in compensation for the abuse he wrongfully suffered. Arar is still seeking accountability in U.S. courts.
As Monday's proceedings came to an end, military judge Col. Patrick Parish called for reconvening at 9 a.m. the following day, choosing to again ignore that a new president would soon take office. The pretrial hearing reconvened on Tuesday morning — the day of President Obama's inauguration. No attempts were made to delay the proceedings. At 11 a.m., the judge called for a break to allow hearing participants and observers to "watch the inauguration activities in Washington," his first acknowledgement of anything that might radically alter the course of the proceedings in his courtroom.
Human rights observers found themselves gathering with family members of 9/11 victims and military personnel in the "galley," Gitmo's cafeteria, a room decorated with MLK posters but lacking any recognition of the inauguration. The administering of the oath of office drew a muted response, with every party in the room wondering what would come next. Obama was expected to issue several executive orders, including one with directions to close down Guantánamo. Waiting for these orders was comparable to a death watch for a patient whose demise was certain; we were just waiting for the reading of the will.
Around 10:30 p.m. that evening, after many in "Camp Justice" were already in bed, one of the lawyers in Omar Khadr's military defense team rode by on a bicycle to deliver the news. Just hours after his inauguration, President Obama had ordered his secretary of defense to instruct the prosecution to seek a 120-day stay in the military proceedings. The words of the new commander-in-chief reached the Naval Base, forcing it to react to the winds of change that blew from the streets of the capital. Human rights observers ran the order over to the press, having to wake some reporters, who then rushed to file their stories while the flat-screen television displayed images of the new president and First Lady dancing at the inaugural balls.
At 9 a.m. Wednesday morning, we all returned to the courtroom to learn from the chief military defense counsel that Omar Khadr's motion to stay the hearings had been granted unopposed. However, in a separate courtroom, where a hearing for the 9/11 defendants was taking place, Judge Army Col. Steve Hanley wanted to hear the defendants' statements, including the statement of Khalid Sheikh Mohammed, the alleged mastermind of the September 11 attacks. The defendants had declined military legal representation and three of them were allowed to appear on their own (or "pro se") with standby military counsel and civilian legal advisors from the ACLU's John Adams Project. In spite of defendants' opposition to the delay, Col. Hanley decided to grant the government motion and suspended the hearings.
President Obama has made a major step in the right direction and should be highly commended for his bold and decisive actions. His orders to close Gitmo within the year, to end torture, and to close CIA secret prisons or "black sites" put an end to some of the worst Bush administration policies. Yet, this first step is not alone enough. We hope to see a prompt and unconditional withdrawal of all charges in the military commissions pending the review of all cases. Unfortunately, President Obama's executive order left open the option that this flawed system can still be used to try some of the detainees, albeit under revised rules. Just last week, a military judge in the case of Abdel al-Rahim al-Nashiri, who allegedly planned the 2000 attack on the U.S.S. Cole denied the prosecution's motion for a stay of 120 days, meaning the case would go forward even as the Obama administration reviews whether to abandon the commissions altogether. Yesterday, Susan Crawford, Convening Authority of the Military Commissions, withdrew the charges against al-Nashiri.
Many questions remain unanswered, but we are hopeful that President Obama, through his ordered inter-agency task force, will address these questions and restore full credibility to America's commitment to the rule of law and human rights. The option of setting up an alternate judicial system must be finally and permanently repudiated. The United States cannot afford a new Gitmo by simply bringing it onto U.S. soil. U.S. federal courts are perfectly capable of prosecuting terrorism cases and providing both security and due process.
It is critical that electronic and documentary evidence in all cases, especially those of the high-value detainees at CIA black sites, be preserved. If prosecutors choose to re-refer their charges, Guantánamo detainees should be made safe from the possibility of double-jeopardy. Executive orders should look beyond Guantánamo and address U.S. detention facilities abroad, including Bagram. The CIA should no longer be allowed to run any such detention facilities. Finally, the Army Field Manual should be reevaluated to limit any coercive interrogation techniques that U.S. officials might employ anywhere to make sure that they adhere to U.S. international human rights commitments that ban cruel, inhuman or degrading treatment.
This is undoubtedly an historic moment — a possibility for real change. Obama's first words as president signaled a significant breakthrough and promised a new path to the American people and the world:
As for our common defense, we reject as false the choice between our safety and our ideals. Our Founding Fathers, faced with perils that we can scarcely imagine, drafted a charter to assure the rule of law and the rights of man—a charter expanded by the blood of generations. Those ideals still light the world, and we will not give them up for expedience's sake.
There is no doubt that President Obama has talked the talk that has inspired millions of people. On his first days in office, he has started to walk that long walk. The ACLU will vigilantly monitor his progress and extend our support to him whenever he attempts to keep the nation not just safe, but also free.