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Guantánamo: Back to Square One

Jamil Dakwar,
Director, ACLU Human Rights Program
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November 9, 2007

Editor’s Note: You can listen to a podcast of Jamil discussing Thursday’s hearing at Guantanamo here.

After close to five months of uncertainty regarding the future of the military commission system, hearings resumed today when Canadian national Omar Ahmed Khadr faced his third arraignment. That’s right, his third arraignment. Clearly, the wheels of injustice turn very slowly at Guantanamo.

Khadr, who is now 21 years old, was only 15 when he was captured by U.S. forces in Afghanistan. New charges against Khadr were filed for the third time last month after the old charges were thrown out in June by a military judge who ruled that the commission lacked proper jurisdictional authority to prosecute him.

The military judge, Army Col. Peter Brownback, ruled that Khadr had not been designated as an “alien unlawful enemy combatant” as required under the Military Commission Act signed into law by President Bush in October 2006. Khadr is accused of murder, attempted murder, conspiracy, material support and espionage. Most of the charges relate to a 2002 incident in Afghanistan in which Khadr is alleged to have thrown a grenade, killing one soldier and wounding another. Khadr is one of only four captives at Guantanamo who were so far charged. Over 320 other prisoners continue to languish indefinitely without charges and no meaningful access to the courts.

Today’s hearing attracted close to 30 reporters, including several Canadian reporters and a Russian television crew that was broadcasting in Arabic! In addition to the five non-governmental organizations that have been granted status as permanent observers – the ACLU, Human Rights Watch, Amnesty International, Human Rights First and the Association of the Bar of the City of New York. In what appears to be an attempt to counter the largely critical contingent of human rights observers, the Pentagon invited three other groups to observe the military commission hearing: the Heritage Foundation, the Carnegie Council and the Veterans of Foreign Wars. As a matter of courtesy, the Canadian government sent a representative to observe the hearing.

Guantanamo’s tent city.

A striking difference today from previous military commission hearings was the ongoing erection of a tent city just hundreds of feet away from the current Military Commission building. That building – the former home of a military dentistry – has become too small to accommodate the military commission staff. The Department of Defense had attempted to build a grandiose, $125 million court complex instead, but a successful ACLU lobbying effort stymied the plan, so the tents will have to do.

Khadr appeared relaxed during his hearing today, but looked much older than his actual age. He wore a white Afghan-style dress and had a black religious cap over his head. He agreed to be represented by a military defense lawyer, Navy Lt. Cmdr. William Kuebler, who was joined by Department of Defense civilian attorney Rebecca Snyder and Canadian lawyer Nathan Whitling.

To give more legitimacy to the proceedings, the prosecution – led by Marine Maj. Jeffrey Groharing – was joined by Assistant U.S. Attorney John Murphy. The prosecution was prepared to present its evidence regarding the designation of Khadr as an “alien unlawful enemy combatant” and said that it actually prepared documents and prepared as a witness an FBI agent who the defense could not depose. Of course, the prosecution was eager to move ahead with this trial, assuming that a slam-dunk determination by Col. Brownback that Khadr is indeed an “alien unlawful enemy combatant” was forthcoming – a ruling that would set a good precedent for subsequent cases that come before the military commission. Earlier in the week, however, at a non-public conference, Col. Brownback decided not to hear constitutional and international law arguments regarding the jurisdictional question.

Mindful of a pending motion before the Court of Appeals in the D.C. Circuit, the defense team said they would reserve the right to bring substantive challenges at an appropriate time against the jurisdictional authority of the military commission to try Khadr, and emphasized that while they acknowledge the jurisdiction of the commission, they disagree and have objections which relate to his having been a child when he was captured and held as a prisoner of war.

Finally, and perhaps the most interesting part of today’s hearing, was the defense’s voir dire inquiry: their attempt to question the impartiality of Col. Brownback. Col. Brownback was at times impatient with the questions presented by Lt. Cmdr. Kuebler. He was asked about a Supreme Court decision in the case against Salim Hamdan, another prisoner held at Guantanamo. The June 2006 decision struck down the old system of military commissions; during voir dire, Col. Brownback said he did not think that the Hamdan ruling found the military commission illegal. He instead stressed that the decision found that according to Common Article 3 of the Geneva Conventions, the President had to go to Congress to get authority for the military commission.

His response was certainly not surprising considering his commission’s legitimacy and his personal involvement in the old system was at stake. Col. Brownback also gave an unusual answer when he was asked what he knows about al-Qaeda. He said: “al-Qaeda is an organization or a group dedicated to the spread of Islam.” It is quite disturbing that one would equate the spread of Islam with a group like al-Qaeda, which has been classified by almost the entire world community as a terrorist organization responsible for horrific crimes.

Finally, Col. Brownback disclosed that he is friends with General John Altenburg, the convening authority of the military commission system since its inception in 2004. Despite the defense demand that he be disqualified for that reason alone, Col. Brownback decided to deny the request and found that he has no bias and is qualified to preside over Khadr’s trial.

Today’s hearing was nothing more than another example of the lack of legitimacy and competency of the military commission system. As long as the independence and impartiality of the system is called into question, we will essentially remain at square one. Our only hope for fair trials and justice consistent with U.S. and international law lies in Washington, where Congress must find the political courage to stop this failed legal experiment.


As part of the Pentagon’s new ground rules regarding the status of human rights observers, we were denied access to the media center shortly after the hearing ended. As a result, we were denied access to critical information shared by the defense team with the press at a press conference. The defense lawyer revealed that the government has for years had secret evidence that could help Khadr defend himself. Prosecutors notified Khadr’s military lawyer two days ago of the existence of “potentially exculpatory evidence” from a U.S. government eyewitness to the battle in Afghanistan that resulted in Khadr’s capture in 2002.

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