by Deborah Colson, Senior Associate in the Law and Security Program at Human Rights First

Guantanamo Naval Base, February 5, 2008-- After more than six years, the basic questions of who can be tried by military commission, for what charges and under what procedures remain unresolved. Yesterday’s pretrial hearing in Omar Khadr’s case only underscored this point. Yet the U.S. government continues to insist on trying to use these military commissions as an end-run around standards and procedures for criminal justice that have served the United States well for over 200 years.

Four Lessons Learned

Lesson 1: Many long-standing principles of fundamental justice – American or international – seem not to count in Guantanamo (Part A: juvenile justice).

Omar Khadr is accused of killing U.S. Army Sergeant First Class Christopher Speer in Afghanistan in 2002. The government alleges that Khadr threw a hand grenade at the soldier from a house during a firefight with U.S. forces. Khadr was fifteen years old at the time.

If Khadr ultimately is tried by military commission, he may not be the first person ever put on trial for alleged war crimes committed while a minor, but it could well be a first for the United States. The defense argued yesterday that Congress never intended to have these military commissions try juvenile offenders.

This isn’t to say that Khadr shouldn’t be held responsible if he indeed committed serious offenses; even the defense conceded that Khadr could properly be tried as a juvenile in a system incorporating fundamental standards of juvenile justice and other fair trial rights. But the Military Commissions Act (“MCA”) makes no mention of juvenile offenders. Since the military commission process is modeled after the Uniform Code of Military Justice (“UCMJ”), the defense argued that the presumption should be in favor of following the UCMJ, under which general military criminal jurisdiction is limited to adults. The defense also noted that every “civilized justice system” in the world – including the United States – distinguishes between minors and adults in imposing criminal punishment.

The defense also cited the Optional Protocol to the Convention on the Rights of the Child on Involvement of Children in Armed Conflict (“Optional Protocol”). The Optional Protocol was ratified by the United States in 2002 and took effect in 2003. It prohibits both armed forces and even mere “armed groups” from recruiting or using in hostilities juveniles under the age of eighteen. It regards child soldiers as victims in need of rehabilitation, not as true volunteer “soldiers” capable of making an informed choice to join a military force. Under the Optional Protocol, said U.S. Navy Lieutenant Commander William Kuebler, Khadr’s lead defense counsel, Khadr is “a victim of al Qaeda, not a member of al Qaeda”; as a result, he does not have the requisite military status for military jurisdiction to be imposed.

Kuebler accused the government of attempting to create a “one-size-fits-all justice system” that fails to differentiate between minors and adults. The government contends the MCA provides jurisdiction over “all persons” who are designated enemy combatants irrespective of their age. The government’s interpretation, according to Kuebler, could lead to the ridiculous result of charging five-year-olds with war crimes, and even subjecting them to the death penalty. The government acknowledged yesterday that its interpretation of the MCA would allow for the imposition of the death penalty on juveniles. The government called this argument a “red herring” because no juvenile – including Khadr – has to date been charged with a capital offense.

What explains the government’s determination to try Khadr under the MCA for alleged offenses which – if he committed them at all – he committed as a juvenile? Rather than acknowledge error in detaining child soldiers like Omar Khadr in Guantanamo Bay, the government at least fosters an impression that it would rather dig its heels in and use the MCA to cover past mistakes. 

Lesson 2: Many long-standing principles of fundamental justice – American or international – seem not to count in Guantanamo (Part B: ex post facto laws).

Another of Khadr’s lawyers, Rebecca Snyder, argued yesterday that applying the MCA to Khadr also would violate constitutional and international legal principles banning ex post fact o laws, because the MCA was not even enacted by Congress until four years after Khadr committed his alleged offenses. None of these offenses violated the law of war as it existed at the time of the alleged events , nor did they violate any applicable U.S. law in effect when Khadr was captured in 2002.

The prosecution argued that ex post facto principles do not apply in this case. According to the government, the U.S. Constitution does not protect aliens detained as enemy combatants at Guantanamo Bay – although the Supreme Court has questioned whether Guantanamo, which is under effective U.S. government dominion, is truly “abroad” for purposes of determining what law applies – and international ex post facto principles are irrelevant because Congress is not bound by international law.

Let’s take this out of the context of point/counterpoint by the defense and prosecution in this particular case. The prohibition against ex post facto prosecution is without doubt simply one of the most fundamental principles of both U.S. constitutional and international criminal law, including the law of war. It certainly is an intrinsic element of Common Article 3 of the Geneva Conventions, which requires fair trials in accordance with international standards. And the Supreme Court has already determined that Common Article 3 is indeed a part of U.S. law and applies to the Guantanamo detainees.

Contemporary statements by congressional sponsors of the MCA that the MCA fully complies with Common Article 3 – and indeed was intended to do so – can only be seen as a clear refutation of the argument the U.S. government made in Guantanamo yesterday: that ex post facto principles that apply in the United States and throughout the “civilized world” do not apply in Guantanamo Bay.   

Lesson 3 :  Military commission proceedings are transparent only when the government wants transparency, and remain shrouded in secrecy when the government does not.

Yesterday’s pretrial hearing took several hours, but the greatest excitement occurred after the hearing, when the Office of Military Commissions discovered that a protected government document marked FOUO (“For Official Use Only”) had been inadvertently disclosed to the media. 

The document is potentially critical for the defense, apparently summarizing an interview by U.S. government investigators of a purported witness who said Khadr was not the only “enemy combatant” in the house when the grenade was thrown. According to Commander Kuebler, the witness said he saw a second individual in the house with Khadr – a second person, a combatant, who was alive and armed and fighting. 

The government properly turned this document over to the defense in discovery. Then the defense attached it as an exhibit to one of its court filings. Since the government had marked the document as FOUO, however, following military commission rules the defense agreed to withhold the document from copies of the filing released to the press. When the brief was distributed yesterday morning, however, the FOUO document was accidentally attached.

At a press conference after the hearing, Kuebler explained that although the defense was bound by a protective order to withhold the document, since it had been inadvertently released, “we’re content with the public disclosure…. Frankly, we’re happy to have it out there.”

Kuebler believes the government is abusing its power by over-classifying documents and “playing games with protective orders.” According to Kuebler, nearly all the evidence in Khadr’s case has remained outside public view. Evidence is disclosed only when “the government decides to dribble it out.” As an example, Kuebler accuses the government of leaking several prejudicial and unnecessary facts in its filings responding to defense motions to dismiss.

It’s not necessary to accept everything Khadr’s lawyer says at face value. From what we know of this particular document produced by the government, documenting a witness interview conducted by the government, there is no good reason – no compelling national security reason – why its substance should be kept from the public, responsibly protecting of course the identity of individuals participating in the interview.

So much for transparency. If the government continues to withhold as “secret” such evidence from public (and sometimes defense) view, it cannot expect to gain public trust and confidence in the process. Observers may be inclined here to conclude that the government’s reason for wanting this document withheld from public view is to keep from the public a piece of evidence that suggests someone other than 15-year-old Omar Khadr may have thrown the grenade that killed a Sergeant Speer. That may be an accurate assessment, or it may not. But it is the government’s approach to these military commissions, and its rejection of so many fundamental principles of justice, that has created this mistrust. 

Lesson Number 4: The government seems to have forgotten the meaning of proof beyond a reasonable doubt.

The document described above that was the subject of yesterday’s excitement reportedly does more than provide evidence that there was a second person alive – and fighting – in the house where Khadr was taken. According to Commander Kuebler, the document also indicates there were no eyewitnesses to the actual killing of Sergeant Speer; thus no one saw whether it was Khadr or the other person who threw the grenade.

If true, it’s difficult to conceive that the prosecution would be able to carry its burden of “proof beyond a reasonable doubt” against Khadr in a regular civilian criminal court – or even in a regular U.S. military court-martial. Perhaps the government believes this standard of proof will have a different meaning to a military commission.       

More disturbingly, according to Kuebler the document provides evidence that U.S. soldiers shot Khadr twice in the back after he had already been wounded, and was sitting and out of the fight: “[I]t would be difficult to describe his near fatal shooting while wounded and hors de combat as anything other than something very akin to an attempted summary execution,” says Kuebler. “This could explain the government’s decision to hold him responsible for tossing a hand grenade despite the absence of any eyewitness to the incident … and [despite] the fact that at least one other person was alive and fighting when Sergeant Speer was mortally wounded.”

If Kuebler’s claims are correct, the Khadr prosecution smacks of desperation – at best. Of course, we have no way of fully weighing Kuebler’s arguments – the American people have no way of weighing them – because the U.S. government chronically withholds relevant evidence necessary to evaluate what really is happening in these proceedings in Guantanamo. Even when the government produces evidence to the defense it often does so (as it did here, or tried to) on condition that the defense not make it public.

Allowing a handful of NGOs and media to observe these proceedings does not make them transparent. Legitimate judicial proceedings are not truly transparent when they are transparent only to the extent the government wants transparency, but remain shrouded in secrecy when the government does not. It’s not hard to understand why the word “Guantanamo” now carries such a stain that even President Bush has said the camp should be shut down.

A Final Lesson

The lesson of these four lessons? Pay no attention to the man behind the curtain. What we saw yesterday in Guantanamo are precisely the kinds of short-cuts around, and even wholesale abandonment of, core principles that can lead to unjust convictions – or to the government’s inability we’ve see for years to be able to obtain sustainable convictions at all, even in cases that demand prosecution and conviction. This approach to prosecuting detainees has harmed U.S. government efforts to win hearts and minds in its counterinsurgency efforts by allowing the adversary to portray U.S. government conduct as illegitimate by the United States’ own standards of justice and humane treatment, running counter to core teachings of the U.S. Army’s and U.S. Marine Corps’ own Counterinsurgency Field Manual, drafted so recently under the supervision of General Petraeus. By so doing the government has denigrated the reputation of the United States for fairness and has undermined the United States’ efforts to promote human rights worldwide.