ACLU Monitoring Unconstitutional Guantánamo Military Commissions This Week

January 19, 2009 12:00 am

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Guantánamo BAY, Cuba – The American Civil Liberties Union is at Guantánamo this week monitoring the unconstitutional military commission hearings in the case of Omar Khadr, the 22-year-old Canadian national slated to be tried for war crimes allegedly committed when he was 15. If Khadr’s trial goes forward as scheduled on January 26, the U.S. will be the first western nation in recent years to hold a war crimes trial for crimes allegedly committed by a juvenile. The ACLU and other rights groups sent a letter to President-elect Obama on January 12 asking him to suspend Khadr’s trial.

The ACLU’s Jamil Dakwar and Denny Leboeuf will be observing today’s proceedings, which are expected to cover Khadr’s re-arraignment. Another matter that might be addressed in today’s proceedings is the competency of Ramzi bin al Shibh, a co-defendant of Khalid Sheikh Mohammed in the 9/11 case. In December, the Convening Authority of the Military Commissions Office “re-referred” the charges against the 9/11 and other detainees, paving the way for new arraignments. This unusual move may require the four other defendants, in addition to bin al Shibh, to be present in court today, although the military commission judge has said he will not accept pleas.

In a separate, habeas corpus case in federal court, Judge Emmett Sullivan ordered that a defense mental health expert be granted access to bin al Shibh “forthwith. And by ‘forthwith’ I mean tomorrow.” Judge Sullivan said it was “the antithesis of justice” to detain a man for six years without access to his own psychological expert. Allegations have been made in open court that bin al Shibh is psychotic, a result of or affected by torture inflicted while he was in CIA custody. Judge Sullivan declined to order the military commission proceedings halted, as he felt it was not within his jurisdiction, but he did refer to Guantánamo as “that hellhole” and said the incoming administration should shut it down.

Tainted by political interference, the Guantánamo military commission proceedings have been marred by ethical and legal problems from day one. Just last week, Susan Crawford, head of the Office of Military Commissions (OMC), admitted that she refused to refer the case of Mohammed al-Qahtani’s to trial because “we tortured [him].” It is well-known that al-Qahtani’s case was not an aberration, and that other detainees whose cases are being prosecuted were also subject to torture and abuse. On Friday, following Crawford’s comments, Air Force Col. Peter Masciola, chief defense counsel of the OMC, sent a letter to Crawford requesting that she withdraw all Guantánamo cases currently being prosecuted.

Through its John Adams Project, the ACLU, in partnership with the National Association of Criminal Defense Lawyers, is sponsoring civilian lawyers to assist the under-resourced military defense counsel representing Guantánamo detainees, including those accused in the 9/11 attacks. The ACLU has been present as an independent observer at nearly every commission hearing since 2004 and continues to see no indication that the proceedings are fair, impartial or in accordance with constitutional principles.

On Friday, the ACLU called upon the U.N. Committee on the Rights of the Child and the U.N. Special Representative for Children and Armed Conflict to intervene in order to prevent Khadr’s case from going forward. The same day, the U.N. Special Representative’s office responded that “the trial of Omar Khadr will be a bad precedent and will undermine international legal protection for children” and volunteered to pass on the request to President-elect Obama’s transition team. The ACLU’s letter is available at:

The ACLU’s letter to President-elect Obama seeking the suspension of Khadr’s trial is available at:

More information on the ACLU’s work to shut down Guantánamo and the military commissions can be found online at:

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