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The End of the Beginning? Or the Beginning of the End?

Ben Wizner,
ACLU Speech, Privacy, and Technology Project
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October 7, 2009

Nearly four years have passed since I first traveled to Guantánamo to observe proceedings in the military commission prosecution of Canadian Omar Khadr, who was 15 years old when seized in Afghanistan and has now spent fully a third of his life in captivity. In an ordinary justice system, Khadr’s trial – and very likely any possible sentence – would have been completed long ago. Here at Guantánamo, we were back to square one with the dismissal of one of Khadr’s lawyers and the introduction of two new defense lawyers – numbers 10 and 11 by my count – who are unfamiliar with the case and will need quite a bit of time to get up to speed. In other words, it’s déjà vu all over again.

Or perhaps not. Today the prosecution requested, and the court granted, a further delay in proceedings until November 16, 2009, on which date the Obama administration has pledged to reach a “definitive forum resolution” in Khadr’s case. In other words, on or before that date, the administration will decide whether to continue the prosecution in the military commission system, transfer it to a federal court, or dismiss the case altogether. It appears that the administration is still deliberating.

Chief military prosecutor John Murphy used a post-hearing press conference to lobby, quite openly, for the Khadr case to remain within the military commission system. His stated rationale is that military prosecutors are most familiar with the case, but that’s hardly a persuasive justification for further tarnishing the nation’s historic leadership on human rights by prosecuting a child soldier in an illegitimate system. Of course, the military has other reasons for seeking to keep control of these proceedings: Unlike federal courts, military commissions will permit the use of evidence obtained unconstitutionally and, perhaps more importantly, will allow the government to conceal details of its mistreatment of prisoners from the public.

That Murphy felt the need to plead publicly for the commissions’ continued relevance may indicate that he believes he’s losing this battle internally. Let’s hope so. The commissions have been an unmitigated embarrassment, and an unnecessary one. They should be abolished. Every single offense charged by military commission prosecutors could and should have been prosecuted in established federal courts. Khadr’s case belongs, if anywhere, in those courts. Or perhaps the Obama administration will decide that eight years in Guantánamo is punishment enough for a juvenile offender, and will repatriate Khadr to his country and his family.

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