October 28, 2008ardly a day goes by without some extraordinary
news from the military commissions, the system of "terror trials"
conceived in the office of the vice president in November 2001, and their days
now seem to be as numbered as those of the Bush administration itself.
Following the outspoken
resignation of former prosecutor Lt. Col. Darrel Vandeveld and the Pentagon's
desperate decision to
drop charges against five prisoners to prevent Vandeveld from testifying for
the defense, the latest news to rock the commissions is that the trial of Omar
Khadr – a supposedly flagship case, along with that of the Yemeni Salim
Hamdan, who received a surprisingly
light sentence after a trial this summer – has been delayed until after
the administration leaves office.
This is a bitter blow for the government, which has been pushing to prosecute
Khadr for war crimes since 2005. Its first attempt failed, when the Supreme
Court ruled that the whole enterprise was illegal, but after the commissions
were bandaged up by Congress and resumed their ghoulish existence in 2007,
Khadr was once more put forward for trial.
This was in spite of the fact that his tenacious lawyers – both military and
civilian – have questioned the very basis of the "war crimes" charges
(which essentially transform combatants in war into "terrorists"),
and have unearthed evidence (despite systemic obstruction) that Khadr may not
have been responsible for the main crime for which he is charged (throwing
a grenade that killed a U.S. soldier). Focusing on the fact that Khadr was
just 15 years old when he was seized in July 2002, they have also persistently
pointed out the cruel folly, injustice, and illegality of prosecuting a juvenile
for war crimes, when the UN
Convention on the rights of children in wartime, to which the U.S. is a
signatory, requires juveniles – those under the age of 18 when the alleged
crime took place – to be rehabilitated rather than punished.
Last week, in pre-trial hearings, they reprised some of these arguments,
and also sought access to seven interrogators, from various intelligence agencies,
who, they insist, extracted coerced confessions from Khadr, who was severely
wounded, while he was detained in the U.S. prison at Bagram airbase in Afghanistan,
before his transfer to Guantánamo. According to the lawyers, the information
extracted from Khadr under duress was then used as the basis for interrogations
at Guantánamo using more "sterile" and "benign"
techniques, in much the same way that the administration has attempted to cover
up its torture of Khalid
Sheikh Mohammed and other "high-value detainees" in secret CIA
custody by using "clean
teams" of FBI agents to extract new confessions in Guantánamo.
As was revealed
in Salim Hamdan's trial, the prohibition on the use of coerced evidence (which
was only introduced after the commissions' first incarnation was struck down
by the Supreme Court, and is still allowable at the judge's discretion) may
technically satisfy the absolute prohibition on the use of evidence obtained
through torture, but it has the knock-on effect of effectively erasing the
government's crimes from the record, while also allowing the authorities to
obtain "clean" confessions from abused prisoners in a way that would
shame all but the most vile totalitarian regimes.
Last week, Khadr's judge, Army Col. Patrick Parrish, deferred a decision
on the defense's motion, but as Judy Rabinovitz, an observer for the American
Civil Liberties Union, noted, he "did not appear impressed" by
the prosecution's argument that "there 'needs to be a showing' by the
defense that coercive interrogation practices were used," which otherwise
were only "speculative." As Rabinovitz noted, touching on the burning
issues of the suppression of evidence vital to the defense, which was highlighted
in Mohamed Jawad's case by Lt. Col. Vandeveld, "This line of argument
would not likely succeed in a regular military or civilian criminal court,
in which the standard for discovery generally places the burden on the government
to give the defense information that may assist the defense."
She added that Col. Parrish was also not impressed by the government's assertion
that even providing information about the seven interrogators, three weeks
before the trial's scheduled start date of Nov. 10, would be an "undue
burden" on the government.
However, Col. Parrish's decision to postpone Khadr's trial until Jan. 26,
five days into the new administration, was prompted in particular by defense
complaints about the government's attempts to obstruct an independent psychiatric
examination of their client. Although this was first requested in May, it was
challenged and resisted by the government in hearings
throughout the summer, and as a result a psychiatric expert met Khadr for
the first time on Oct. 13. Requesting a postponement of the trial's start date,
the defense pointed out that the expert would need time to establish a rapport
with Khadr, and also argued that the delay in providing Khadr with a psychiatric
evaluation was largely the government's fault. As Judy Rabinovitz explained,
even when an independent expert had been approved, the prosecution "delayed
in providing her the necessary security clearance, and has also failed to provide
the defense with Khadr's psychiatric records."
Those who have been pressing for the young Canadian's release will now be
hoping that the Canadian government (which is also a signatory to the UN Convention)
will finally discover its spine, and will take advantage of the change of administration
to demand his return to Canada, or that the new U.S. government will refuse
to proceed with the case. Barack Obama, who voted against the Military Commissions
Act that revived the trial system in 2006, has pledged
to abolish the military commissions, which he regards (along with the use of
torture, the shredding of the Geneva Conventions, and the sidelining of the
U.S. Constitution and the Uniform Code of Military Justice) as key examples
of the Bush administration's quest for "unchecked presidential power,"
and even John McCain, who voted for the legislation, may wish to transfer the
ailing system to the mainland, and has already explained
that he would repatriate Khadr if asked to do so by the Canadian government.