Yesterday was a stark reminder that instead of closing the book on the Bush-era military commissions, President Obama is adding another sad chapter to that history. Although President Obama promised transparency and sharp limits on the use of tortured and coerced statements against the accused, at Guantánamo today one military judge ordered that a sentence be kept secret from the public and another military judge allowed statements obtained by abuse and coercion of a 15-year-old to be used at trial.
Monday was Day One of the sentencing hearing in the case of Sudanese detainee Ibrahim al-Qosi. Al-Qosi was the first detainee to be convicted under President Obama, in a plea deal entered this June in which he admitted to being an al Qaeda cook and occassional driver. Yesterday sawjury selection of senior military officers, who would deliver a formal sentence in al-Qosi's case. If the jury delivers a sentence longer than what was agreed to in the plea bargin, it will be moot. Unless the jury delivers a shorter sentence, al-Qosi's true sentence will be what was hammered out in the plea agreement.
But in an unprecedented move, military judge Air Force Lt. Col. Nancy Paul ordered today that al-Qosi's true sentence will be kept secret until he's released. The judge said the government requested that the sentence be kept secret.
A fellow observer of the military commissions here, former Marine judge and law of war expert Gary Solis, here to monitor the commissions for the National Institute for Military Justice, says he has participated in 700 courts-martial and has never heard of a secret sentence.
Last month, the Al-Arabiya satellite news network cited two sources who have seen the plea agreement and say the plea deal would cap al-Qosi's sentence at two years (beyond the eight years he's already served). I've heard speculation here at Gitmo that the reason for concealing al-Qosi's sentence from the public is to prevent political attacks portraying the Obama administration as weak on terrorism before the November mid-term elections. (There have been only three other convictions by the military commissions — all under former President Bush — and two of the three have already been released. Former Guantánamo detainee Salim Hamdan's 2008 sentence of five months on top of time served drew fierce criticism from some.)
This country deserves more than election-year charade, in which a jury delivers a show sentence and the true sentence is concealed from the public because some may perceive it as too lenient.
A final pretrial hearing also took place Monday in the case of Canadian Omar Khadr, who will start trial today as the first test trial of the military commissions under President Obama. In a summary decision of only a few words, and with no explanation, the military judge in Omar Khadr's case, Col. Patrick Parrish, denied defense motions to exclude self-incriminating statements Khadr made to interrogators because of torture and other abuse. The judge will issue a written decision, certainly after the trial begins and possibly after it's ended, but for now he's offered no explanation.
It boggles the mind that the military judge could find that Khadr was not coerced and gave these statements to interrogators voluntarily. Khadr, then 15 years old, was taken to Bagram near death, after being shot twice in the back, blinded by shrapnel, and buried in rubble from a bomb blast. He was interrogated within hours, while sedated and handcuffed to a stretcher. He was threatened with gang rape and death if he didn't cooperate with interrogators. He was hooded and chained with his arms suspended in a cage-like cell, and his primary interrogator was later court-martialed for detainee abuse leading to the death of a detainee. During his subsequent eight-year (so far) detention at Guantánamo, Khadr was subjected to the "frequent flyer" sleep deprivation program and he says he was used as a human mop after he was forced to urinate on himself.
In closing arguments before the judge's ruling, Khadr's sole defense lawyer, Lt. Col. Jon Jackson, told the judge, "Sir, be a voice today. Tell the world that we actually stand for what we say we stand for."
Though President Obama promised that coerced evidence would not be used against detainees in the military commissions, today's ruling suggests that as a country, we stand for abusing a 15-year-old teenager into confessing, and using those confessions against him in an illegitimate proceeding.
Not just Omar Khadr, but also the United States, is on trial starting tomorrow. We should show the world that we can provide a fair trial to Omar Khadr, after what is known about what we've done to him. But that simply is not going to happen in a Guantánamo military commisison designed to ensure quick convictions at the expense of due process and transparency, and structured to prevent the revelation of abusive interrogations engaged in by the U.S. government.
CORRECTION: An earlier version of this post stated that Gary Solis "presided over 700 courts-martial." That was incorrect. Solis presided over 400 cases as a judge, but participated in 760 as a lawyer or judge.