The Guantanamo Paradox

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Canadian defendant Omar Khadr, front left, sits with his defense team as FBI Special Agent Robert Fuller, top left, testifies during Khadr's pre-trial hearing in the courthouse for the U.S. Military War Crimes Commission at the Camp Justice compound on Guantanamo Bay U.S. Naval Base in Cuba, Thursday, April 29, 2010. On the screen behind Fuller, he shows a video of Khadr posing while allegedly making IED's (AP Photo/Janet Hamlin, Pool)


 

By Morris Davis

As a member of the U.S. Senate, Barack Obama criticised President Bush’s military commissions as a “flawed system” that compromised America’s values. Four years later, President Obama is set to preside over the next chapter in the Guantanamo paradox, as his administration attempts to deliver justice through a lightly revised version of the same military tribunals.

The Guantanamo military commissions resume the week of August 9 with two cases on the docket. The Department of Defense will fly a group of military officers to Guantanamo to serve as jurors to determine a sentence for Ibrahim al Qosi, a Sudanese citizen who in early July pleaded guilty to conspiracy and providing material support for terrorism charges as a result of his role as a bodyguard and cook for Osama Bin Laden and al Qaeda.

The sentencing of al Qosi, who was captured in December 2001 as he fled the fighting at Tora Bora with a group of men dubbed “the Dirty Thirty,” comes six years after his initial appearance before a military commission in August 2004 when he was among the first group of detainees the Bush administration tried to prosecute in the makeshift Guantanamo courtroom. The initial group also included David Hicks, Salim Hamdan, and Ali Hamza al Bahlul who were later convicted and sentenced in separate trials in 2007 and 2008.

Al Bahlul boycotted his trial, mounted no defense, and was sentenced to confinement for life. Hicks and Hamdan, despite being among only four of the detainees to be convicted of war crimes of the more than 700 men held at Guantanamo over the past eight years, remained in confinement for just a few months following their military commission convictions. Both are now free men back in their home countries. More than 170 men remain in indefinite detention without having been convicted or in most cases even charged with any criminal offense.

Al Qosi entered guilty pleas as required by the terms of a plea bargain his defense team struck with military commission Convening Authority Bruce MacDonald, the former Judge Advocate General of the Navy who retired from military service earlier this year and accepted the job as head of the military commission bureaucracy. In keeping with customary military criminal law procedure, al Qosi will go before a military jury to determine a sentence for his crimes and will serve the sentence they adjudge or the sentence specified in his plea deal with the convening authority, whichever is more lenient. The terms of the plea deal have not been disclosed publicly, but a source familiar with the negotiations said the terms are very favorable for al Qosi. He could become the third man convicted of war crimes at a Guantanamo military commission whose sentence results in his release from U.S. custody perpetuating what has been an ironic twist of logic– lose at your trial and you might win your freedom.

Another military jury will begin hearing evidence in the case of Omar Ahmed Khadr, a Canadian citizen charged with murder for the death of Sergeant First Class Christopher Speer and attempted murder for helping to make and plant improvised explosive devices near a roadway used by U.S. and coalition forces. Khadr was captured in August 2002 after an intense firefight with U.S. and Afghan forces that resulted in the death of Sergeant First Class Speer and left Khadr as the lone survivor of a group of armed militants barricaded inside a compound in rural eastern Afghanistan. Khadr was fifteen years old at the time and suffered two near-fatal gunshot wounds that penetrated his back and left gaping holes as they exited his chest.

Omar Khadr is the son of Ahmed Said Khadr, a former associate of Osama Bin Laden who was killed by Pakistani forces in a firefight in October 2003 that left another Khadr son paralyzed. The Khadr family had close ties with Osama Bin Laden and his family, and Omar used to play with Osama Bin Laden’s children when the families were together in Afghanistan. His mother, Maha Elsamnah, and sister, Zaynab, returned to Canada where their militant rhetoric undermined efforts by Omar’s supporters to generate public interest in a campaign to pressure the Canadian government to intercede on his behalf similar to the public campaign mounted in Australia in 2006 and 2007 that led to David Hicks’ repatriation and release.

Khadr was originally charged in November 2005 and made his first appearance at a military commission in January 2006. Prior to his first appearance, Khadr’s supporters often displayed a photograph of him taken when he was a 14-year old boy to create the impression that the doe-eyed boy in the picture was now a child locked away at Guantanamo. When the courtroom doors opened in January 2006 and a man standing more than six feet tall with broad shoulders and a beard walked into the room with military guards on either arm there was an audible gasp from the press and other spectators in the gallery as they caught their first glimpse of a mature Omar Khadr. It has been musical chairs at the Khadr defense table over the years with at least four military lawyers appointed to defend him who later quit or got fired. At times Khadr has cooperated with his defense team and attended the proceedings and other times he has been uncooperative and refused to participate.

The Obama administration claims that the revised version of the military commissions established by Congress in the Military Commissions Act of 2009 marks a significant improvement over the system used under President Bush, primarily because of changes to the rules governing the admission of hearsay evidence along with some other amendments. Under the Bush era rules, hearsay was admissible unless the party opposing it – usually the accused – could persuade the military judge that the evidence was unreliable or lacked probative value. Under the new hearsay rule, the military judge must find the evidence goes to a material fact and its admission is in the interests of justice before it is admitted. Requiring the military judge to make affirmative findings before admitting hearsay is a substantive improvement, but its real impact on the fairness of the proceedings does not live up to the hype and still permits the introduction of hearsay evidence that would be inadmissible in a military court-martial or a federal criminal trial.

As the Obama administration continues with the military commissions at Guantanamo it also moves forward with the trial of Ahmed Ghailani in a federal district court in New York. Ghailani, a Tanzanian citizen, was apprehended by Pakistani authorities in 2004 and is alleged to have been involved in the bombings of the U.S. embassies in Tanzania and Kenya in 1998 that killed 12 Americans and more than 200 others. He was in the CIA high value detainee program before being transferred to Department of Defense custody at Guantanamo in September 2006 along with Khalid Sheikh Mohammed and a dozen other detainees who were held and interrogated in secret CIA black sites. Ghailani is the only detainee ever transferred from Guantanamo to the United States.

In a mid-July ruling Judge Lewis Kaplin found that six-years in U.S. custody, including the nearly three years Ghailani was held as an enemy combatant at Guantanamo, did not violate the Sixth Amendment right to a speedy trial clearing the way for a potential trial date this fall. Ghailani will likely be the first Guantanamo detainee to receive a trial that affords the same substantive rights and protections as those given to American citizens and U.S. service members, including strict limitations on hearsay imposed by federal and military rules of evidence.

What the Obama administration will do with the other high value detainees remains a topic of debate and speculation. Attorney General Eric Holder told the Senate Judiciary Committee in April that the choice between a trial for Khalid Sheikh Mohammed and his 9/11 co-accused before a military commission at Guantanamo or before a federal court in the United States was “a very close call” and he said the administration would make a decision within a few weeks. The decision is still pending nearly four months later.

Senator Diane Feinstein (D-CA) seemed to sum up the calculation the administration faces when she told Holder to make the decision “based on the legal facts and where we best get a conviction.” Opponents of military commissions argue that making a forum choice based on the “where we best get a conviction” is antithesis to the President’s campaign pledge of “re-establishing our credibility as a nation committed to the rule of law.” Marine Corps Colonel Jeffrey Colwell, a military commission defense counsel, said the decision to send accused to military commissions would be a “sad day for the rule of law” and told the Washington Post, “I thought the decision where to put people on trial – whether federal court or military commissions – was based on what was right, not what is politically advantageous”.

Whether a military commission or a federal court or court-martial is the appropriate forum, from a purely legal perspective at least, depends on the source of the rights a detainee enjoys. If those rights spring from Common Article 3 of the Geneva Conventions, which mandates “a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples,” then a military commission satisfies the United State’s legal obligation.

As Justice John Paul Stevens noted in the majority opinion in Hamdan v. Rumsfeld, the phrase “judicial guarantees which are recognized as indispensable by civilized people” is vague and requires reference to Article 75 of the First Additional Protocol which lists some specific guarantees:

  • Notice to the accused of the charges and the means to mount a defense;
  • No criminal liability for any act that was not a crime under domestic or international law at the time the act was committed;
  • A presumption of innocence;
  • The right to be physically present for the proceedings;
  • The right to remain silent at trial and not testify;
  • The right to examine the prosecution’s witnesses and evidence and to obtain the same on behalf of the accused;
  • No double jeopardy for the same alleged crimes;
  • Public pronouncement of the tribunal’s decision; and
  • An advisement of appellate rights and the time limits for exercising those rights.

The rights and procedures set out in the Military Commissions Act of 2009 and the Manual for Military Commissions exceed those requirements. Similarly, the military commission’s rights and procedures are at least as favorable to an accused as the rights and procedures that apply at the International Criminal Court and other United Nations sanctioned tribunals. On the other hand, if a detainee is entitled to constitutional due process rights the military commission’s rights and procedures do not measure up and a trial in federal court or before a court-martial is required to pass legal muster. Extending these constitutional rights to detainees, however, appears to be more of an intellectual aspiration for some than an explicit legal requirement of domestic or international law.

If the Obama administration is intent on proceeding with military commissions and at the same time wants to combat the negative perception the term engenders around the world after nearly nine years of ineptitude and failure then it is essential for it to make a genuine commitment to transparency. No doubt the administration understands that the public’s perception that justice is being done is as important to U.S. national interests as actually doing justice in an individual case. The public cannot just drop in at Guantanamo and observe the proceedings, so news media coverage is vitally important to inform the world audience. Excluding the media from the proceedings and conducting them behind closed doors conveys a message that there must be something the United States is trying to hide, even if in truth the closed proceedings are conducted flawlessly.

If the administration recognizes that transparency is imperative to restore the nation’s reputation as the champion of the rule of law its actions so far have tended in the opposite direction and seem likely to have further eroded public confidence in the notion that it is possible to provide justice at Guantanamo. The Department of Defense banned four veteran journalists from covering military commissions after they published the name of former U.S. Army interrogator Sergeant Joshua Claus in their reporting on his testimony at a hearing in the Khadr case in May. The Department of Defense had insisted that journalists describe Claus as “Interrogator #1” rather than using his name, but the four journalists declined noting that Claus had already been convicted in a court-martial for abusing detainees at Bagram Air Base, his name had been in the public domain for years in connection with Khadr, and he had done a prior on-the-record interview about his time at Bagram with one of the journalists. The Pentagon proved its power to enforce its rules by ousting the journalists, but it was a Pyrrhic victory.

The decision to ban the journalists came a few days after all spectators were removed from the courtroom for a closed hearing to play a videotape of Canadian authorities interrogating Khadr at Guantanamo in February 2003. The interrogation video played in the closed hearing was the same one released publicly by the Canadian Supreme Court in May 2008. It is available now, as it has been for some time, on YouTube and other internet sites. Marine Corps Major Jeff Groharing, lead prosecutor in the Khadr trial, assured everyone earlier in the week that “there is no secret evidence in this case.” Nonetheless, a Department of Defense security officer said all interrogation sessions are classified and ordered the hearing closed to everyone except the parties and essential court personnel with security clearances. One of Khadr’s longtime Canadian lawyers, Nate Whitling, who was barred from the closed hearing despite having seen the video many times before, was outraged that the Obama administration ignored a diplomatic note from the Canadian government requesting that the video not be used in Khadr’s military commission. The request was based on a unanimous decision by the Canadian Supreme Court that the involvement of Canadian officials in the interrogation violated Khadr’s rights under the Canadian Constitution’s Charter of Rights and Freedoms. Whitling said the Obama administration’s disregard of the Canadian request and introduction of the videotape as evidence against Khadr “confirms the USA’s status as an outlaw among the community of nations”.

Barring journalists from the island and from the courtroom to safeguard information that has long been available in the public domain while claiming that military commissions version 3.0 provides real justice the world can trust are discordant positions that cannot be reconciled in any sensible manner. There is a danger that the Obama administration may be in the process of squandering its last best chance to demonstrate to a skeptical world audience that military commissions can be credible. From a public diplomacy perspective, the Khadr case is the pick of the litter among the 30 or so detainee cases that may eventually go to trial. The alleged offenses – murder and attempted murder – are ordinary crimes the public understands. U.S. service members were present at the scene of the firefight and can provide firsthand accounts of what happened on the day of the incident. There is a videotape of Khadr and his comrades making IEDs and planting them along a roadway. This is the one case with traditional charges and traditional evidence that comes as close to the look and feel of an ordinary criminal proceeding as any of the cases at Guantanamo. Most of the other cases lack significant physical evidence and depend largely on hearsay to construct a connect-the-dots picture of a cook or a courier or a co–conspirator alleged to have provided material support for terrorism. If there was a single case best suited to put a military commission through its paces in public view to show the world that justice can be done at Guantanamo it was the Khadr case. Unfortunately, by flexing its muscles to strictly enforce its secrecy rules the administration may have achieved two small victories over the news media while losing the larger war to try to win hearts and minds.

President Obama pledged while campaigning for the White House to “lead by example, not just by word but by deed,” and to restore “our credibility as a nation committed to the rule of law.” An example can be a positive one or a negative one, and the assumption was Obama meant America would lead by setting a positive example once he was in office. Only time will tell if that assumption was right. To achieve these objectives he needs to focus more on deeds and less on words; he has said what many believe are the right things about closing Guantanamo and providing fair trials for detainees, but his administration has been unable to walk the President’s talk. To restore America’s credibility as the champion of the rule of law the President has to prove that justice at Guantanamo is not a paradox. He cannot do so while he espouses a vision of military commissions that clings in essential respects to the Bush paradigm.

Colonel Morris Davis was Chief Prosecutor of the Guantanamo Military Commissions from 2005 to 2007.

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