G
Gandalf Grey
Guest
Eyewitness report: Another kangaroo court hearing at Gitmo
By Mary Shaw
Created Nov 10 2007 - 10:41am
They're still bumbling around trying to figure out what to do with all our
so-called enemy combatants.
Yesterday, November 9, was their third attempt at arraigning Omar Khadr.
My friend Jumana Musa, an attorney who serves as Advocacy Director for
Domestic Human Rights and International Justice for Amnesty International
USA, was there to observe and report on the proceedings. Some of her
findings were disturbing, to say the least.
Below is Jumana's report from the scene:
Live from Guantanamo: unfair pretrial proceedings for Omar Khadr
November 9, 2007
Today was the US government's third attempt at arraigning Omar Khadr.
Khadr walked into the commission room today looking much more engaged than
he did at his last appearance before the commission. Unlike his appearance
in June, where he looked disheveled and dead to the world, today Khadr
walked into the court room wearing what looked like white scrubs and slip on
sneakers. His curly hair was tucked into a skull cap and his medium length
beard was neatly trimmed. He seemed very engaged in the process, at times
looking around the commission room and at one point smiling towards the
gallery. He spent much of the hearing with his head ****ed to the side,
appearing to listen intently to the proceedings.
Initially, the hearing was scheduled so the judge could conduct a
mini-hearing within a hearing to determine whether or not military
commissions had jurisdiction over Khadr and could properly try him. This
past June, the military judge in the case threw out the charges against him
because there had been no previous determination. The issue at hand was a
provision in the Military Commissions Act (MCA) which included a provision
stating that in order for the commissions to have the ability to try Khadr,
there must be a determination that he was an "unlawful enemy combatant." The
Combatant Status Review Tribunals (CSRTs) convened by the Bush
Administration to determine status never reached such a finding, instead
confirming "enemy combatant" status. Since the MCA distinguishes between
lawful enemy combatants and unlawful enemy combatants, the military judge
found that such a determination was not sufficient to confer jurisdiction on
a detainee and threw out the charges against Khadr. In addition, the
military judge also found that not having jurisdiction, it would be in
appropriate for him to conduct a hearing to determine Khadr's status.
In September, the Court of Military Commissions Review (CMCR), an
intermediary appeals court created by the MCA, held that while the CSRT
determination was not sufficient to find jurisdiction, the military judge
could hold a status determination hearing to decide whether or not Khadr
meets the definition of an unlawful enemy combatant. Initially, the purpose
of today's hearing was to make such a determination, however when we arrived
in the commission room we encountered a different hearing all together.
At first it appeared that the military judge was cautious about proceeding
in the face of a pending appeals court decision. He even made mention of the
fact that three years ago on this same day, proceedings were stayed in the
Hamdan case by a federal judge. Later it could become clear that the more
fundamental issue was one of witness testimony. The prosecution had brought
two witnesses to testify about Khadr's status. One of them was an FBI agent
who had yet to talk to the defense. It was later revealed in a press
conference that the prosecution had recently revealed that there was an
additional witness not on the base who may have exculpatory evidence, or
evidence that could potentially clear Khadr of some of the charges made
against him. This witness has apparently been known to the government since
the time of Khadr's arrest, and was recently disclosed by the prosecution.
In meetings between the prosecution, defense and judge, it was decided that
they would not go ahead with the status determination, giving the defense an
opportunity to pursue this lead.
The judge did go through Khadr's right to counsel. At his last hearing,
Khadr had fired his American attorneys and requested that he be represented
by his Canadian attorneys. At issue is the rule that specifically prohibits
any attorney who is not a US citizen from representing anyone before the
commission. A non US national can serve as a only as a "foreign attorney
consultant" and advise the case. This time, when asked if he wanted to keep
his detailed military defense counsel and detailed assistant defense
counsel, he responded in the positive.
Once the issue of representation was settled, the defense went forward
with a voir dire of the military judge, which is the opportunity to ask the
judge questions to establish his fitness to serve. There were a few stunning
revelations during the questioning. In one exchange, defense counsel asked
the military judge about his understanding of the 2006 Hamdan decision,
which threw out the previous commissions created by the President. The judge
responded that the Court ruled that in order to hold commissions, the
President had to go to Congress for authorization. When pressed on whether
or not he agreed that the Court held that the commissions were illegal and
that they violated common article 3 of the Geneva Conventions (which, among
other things, mandates that trials must be fair), judge replied that the
Court referred to common article 3 and that to hold commissions the
President had to go to Congress. The defense attorney then read the judge
the relevant portions of the decision in which the court did say the
commissions were illegal and that common article 3 applied. The fact that
the judge could not either remember or would not concede the plain language
of the Supreme Court decision that ruled on the previous commissions was
disturbing to say the least. It was this decision that laid the groundwork
for the MCA and the new commissions over which he presides.
An order issued before the proceedings as well as his answers during the
voir dire were also cause for concern. In his order, he stated that in
arguing Khadrs status, the attorney's could not cite international law or
constitutional law. During the proceedings, when asked what rules he was
bound by, he responded that he was bound by the MCA, the manual for military
commissions and other subsequent rules - no other source of law. It is
difficult to fathom how a judge in a US system is not bound by either the
constitution or international law, especially when the determination being
made is based on the laws of war which itself is based in nothing but
international law. This judge, however, seems to feel he needs nothing more
that the legislation Congress passed last fall and the rules that were
promulgated to implement it to make these complex and cutting edge
determinations.
The truly stunning moment came when defense counsel asked the judge what
his understanding of Al Qaeda was. He responded that based on general
reports, Al Qaeda is an organization/group dedicated to the spread of Islam.
Anyone who has watched a news report or read a newspaper since September 11,
2001 is aware that Al Qaeda is known to be a terrorist organization, and is
designated as such by the US government. It belies an underlying prejudice
to take a group that has claimed responsibility for several mass attacks on
civilian populations on at least four different continents and interpret it
as a group that purports to spread a religion. This conflating of religion
and terrorism is compounded by the fact that this particular judge, in this
particular system, will exclusively adjudicate the cases of Muslim men. It
calls into question how any Muslim man who enters his court can expect a
fair trial, when they are associated with terrorism by the way in which they
worship, not the acts they committed.
At the end of the day, the judge in the case did find himself fit to serve
on this commission, denying a challenge by the defense team. He also cut off
a prosecution attempt to put forth some of the evidence that they believed
would prove that Khadr was an unlawful enemy combatant. The matter of
scheduling was left to a future meeting between the judge, prosecution and
defense. We walked out of the commission building which is up on a hill,
overlooking an old airport hanger and airstrip which is now called "Camp
Justice." This tent city, having all the appearance of a refugee camp in a
war torn country, is intended to facilitate the holding of multiple hearings
at a time. It will house the lawyers, the press, the staff and the NGO
observers, as well as create two additional commission rooms (currently
there is only one). What it does instead is betray the very temporary nature
of this shakily constructed "legal" system, which can be folded up and taken
away at any time. It is a physical manifestation of the transitory nature of
these commissions, which have been resurrected many times but survive only
of life support.
Jumana Musa
Advocacy Director, Domestic Human Rights and International Justice
Amnesty International USA
_______
About author Mary Shaw is a Philadelphia-based writer and activist. She is a
former Philadelphia Area Coordinator for the Nobel-Prize-winning human
rights group Amnesty International, and her views on politics, human rights,
and social justice issues have appeared in numerous online forums and in
newspapers and magazines worldwide. Note that the ideas expressed here are
the author's own, and do not necessarily reflect the opinions of Amnesty
International or any other organization with which she may be associated.
E-mail: mary@maryshawonline.com
--
NOTICE: This post contains copyrighted material the use of which has not
always been authorized by the copyright owner. I am making such material
available to advance understanding of
political, human rights, democracy, scientific, and social justice issues. I
believe this constitutes a 'fair use' of such copyrighted material as
provided for in section 107 of the US Copyright
Law. In accordance with Title 17 U.S.C. Section 107
"A little patience and we shall see the reign of witches pass over, their
spells dissolve, and the people recovering their true sight, restore their
government to its true principles. It is true that in the meantime we are
suffering deeply in spirit,
and incurring the horrors of a war and long oppressions of enormous public
debt. But if the game runs sometimes against us at home we must have
patience till luck turns, and then we shall have an opportunity of winning
back the principles we have lost, for this is a game where principles are at
stake."
-Thomas Jefferson
By Mary Shaw
Created Nov 10 2007 - 10:41am
They're still bumbling around trying to figure out what to do with all our
so-called enemy combatants.
Yesterday, November 9, was their third attempt at arraigning Omar Khadr.
My friend Jumana Musa, an attorney who serves as Advocacy Director for
Domestic Human Rights and International Justice for Amnesty International
USA, was there to observe and report on the proceedings. Some of her
findings were disturbing, to say the least.
Below is Jumana's report from the scene:
Live from Guantanamo: unfair pretrial proceedings for Omar Khadr
November 9, 2007
Today was the US government's third attempt at arraigning Omar Khadr.
Khadr walked into the commission room today looking much more engaged than
he did at his last appearance before the commission. Unlike his appearance
in June, where he looked disheveled and dead to the world, today Khadr
walked into the court room wearing what looked like white scrubs and slip on
sneakers. His curly hair was tucked into a skull cap and his medium length
beard was neatly trimmed. He seemed very engaged in the process, at times
looking around the commission room and at one point smiling towards the
gallery. He spent much of the hearing with his head ****ed to the side,
appearing to listen intently to the proceedings.
Initially, the hearing was scheduled so the judge could conduct a
mini-hearing within a hearing to determine whether or not military
commissions had jurisdiction over Khadr and could properly try him. This
past June, the military judge in the case threw out the charges against him
because there had been no previous determination. The issue at hand was a
provision in the Military Commissions Act (MCA) which included a provision
stating that in order for the commissions to have the ability to try Khadr,
there must be a determination that he was an "unlawful enemy combatant." The
Combatant Status Review Tribunals (CSRTs) convened by the Bush
Administration to determine status never reached such a finding, instead
confirming "enemy combatant" status. Since the MCA distinguishes between
lawful enemy combatants and unlawful enemy combatants, the military judge
found that such a determination was not sufficient to confer jurisdiction on
a detainee and threw out the charges against Khadr. In addition, the
military judge also found that not having jurisdiction, it would be in
appropriate for him to conduct a hearing to determine Khadr's status.
In September, the Court of Military Commissions Review (CMCR), an
intermediary appeals court created by the MCA, held that while the CSRT
determination was not sufficient to find jurisdiction, the military judge
could hold a status determination hearing to decide whether or not Khadr
meets the definition of an unlawful enemy combatant. Initially, the purpose
of today's hearing was to make such a determination, however when we arrived
in the commission room we encountered a different hearing all together.
At first it appeared that the military judge was cautious about proceeding
in the face of a pending appeals court decision. He even made mention of the
fact that three years ago on this same day, proceedings were stayed in the
Hamdan case by a federal judge. Later it could become clear that the more
fundamental issue was one of witness testimony. The prosecution had brought
two witnesses to testify about Khadr's status. One of them was an FBI agent
who had yet to talk to the defense. It was later revealed in a press
conference that the prosecution had recently revealed that there was an
additional witness not on the base who may have exculpatory evidence, or
evidence that could potentially clear Khadr of some of the charges made
against him. This witness has apparently been known to the government since
the time of Khadr's arrest, and was recently disclosed by the prosecution.
In meetings between the prosecution, defense and judge, it was decided that
they would not go ahead with the status determination, giving the defense an
opportunity to pursue this lead.
The judge did go through Khadr's right to counsel. At his last hearing,
Khadr had fired his American attorneys and requested that he be represented
by his Canadian attorneys. At issue is the rule that specifically prohibits
any attorney who is not a US citizen from representing anyone before the
commission. A non US national can serve as a only as a "foreign attorney
consultant" and advise the case. This time, when asked if he wanted to keep
his detailed military defense counsel and detailed assistant defense
counsel, he responded in the positive.
Once the issue of representation was settled, the defense went forward
with a voir dire of the military judge, which is the opportunity to ask the
judge questions to establish his fitness to serve. There were a few stunning
revelations during the questioning. In one exchange, defense counsel asked
the military judge about his understanding of the 2006 Hamdan decision,
which threw out the previous commissions created by the President. The judge
responded that the Court ruled that in order to hold commissions, the
President had to go to Congress for authorization. When pressed on whether
or not he agreed that the Court held that the commissions were illegal and
that they violated common article 3 of the Geneva Conventions (which, among
other things, mandates that trials must be fair), judge replied that the
Court referred to common article 3 and that to hold commissions the
President had to go to Congress. The defense attorney then read the judge
the relevant portions of the decision in which the court did say the
commissions were illegal and that common article 3 applied. The fact that
the judge could not either remember or would not concede the plain language
of the Supreme Court decision that ruled on the previous commissions was
disturbing to say the least. It was this decision that laid the groundwork
for the MCA and the new commissions over which he presides.
An order issued before the proceedings as well as his answers during the
voir dire were also cause for concern. In his order, he stated that in
arguing Khadrs status, the attorney's could not cite international law or
constitutional law. During the proceedings, when asked what rules he was
bound by, he responded that he was bound by the MCA, the manual for military
commissions and other subsequent rules - no other source of law. It is
difficult to fathom how a judge in a US system is not bound by either the
constitution or international law, especially when the determination being
made is based on the laws of war which itself is based in nothing but
international law. This judge, however, seems to feel he needs nothing more
that the legislation Congress passed last fall and the rules that were
promulgated to implement it to make these complex and cutting edge
determinations.
The truly stunning moment came when defense counsel asked the judge what
his understanding of Al Qaeda was. He responded that based on general
reports, Al Qaeda is an organization/group dedicated to the spread of Islam.
Anyone who has watched a news report or read a newspaper since September 11,
2001 is aware that Al Qaeda is known to be a terrorist organization, and is
designated as such by the US government. It belies an underlying prejudice
to take a group that has claimed responsibility for several mass attacks on
civilian populations on at least four different continents and interpret it
as a group that purports to spread a religion. This conflating of religion
and terrorism is compounded by the fact that this particular judge, in this
particular system, will exclusively adjudicate the cases of Muslim men. It
calls into question how any Muslim man who enters his court can expect a
fair trial, when they are associated with terrorism by the way in which they
worship, not the acts they committed.
At the end of the day, the judge in the case did find himself fit to serve
on this commission, denying a challenge by the defense team. He also cut off
a prosecution attempt to put forth some of the evidence that they believed
would prove that Khadr was an unlawful enemy combatant. The matter of
scheduling was left to a future meeting between the judge, prosecution and
defense. We walked out of the commission building which is up on a hill,
overlooking an old airport hanger and airstrip which is now called "Camp
Justice." This tent city, having all the appearance of a refugee camp in a
war torn country, is intended to facilitate the holding of multiple hearings
at a time. It will house the lawyers, the press, the staff and the NGO
observers, as well as create two additional commission rooms (currently
there is only one). What it does instead is betray the very temporary nature
of this shakily constructed "legal" system, which can be folded up and taken
away at any time. It is a physical manifestation of the transitory nature of
these commissions, which have been resurrected many times but survive only
of life support.
Jumana Musa
Advocacy Director, Domestic Human Rights and International Justice
Amnesty International USA
_______
About author Mary Shaw is a Philadelphia-based writer and activist. She is a
former Philadelphia Area Coordinator for the Nobel-Prize-winning human
rights group Amnesty International, and her views on politics, human rights,
and social justice issues have appeared in numerous online forums and in
newspapers and magazines worldwide. Note that the ideas expressed here are
the author's own, and do not necessarily reflect the opinions of Amnesty
International or any other organization with which she may be associated.
E-mail: mary@maryshawonline.com
--
NOTICE: This post contains copyrighted material the use of which has not
always been authorized by the copyright owner. I am making such material
available to advance understanding of
political, human rights, democracy, scientific, and social justice issues. I
believe this constitutes a 'fair use' of such copyrighted material as
provided for in section 107 of the US Copyright
Law. In accordance with Title 17 U.S.C. Section 107
"A little patience and we shall see the reign of witches pass over, their
spells dissolve, and the people recovering their true sight, restore their
government to its true principles. It is true that in the meantime we are
suffering deeply in spirit,
and incurring the horrors of a war and long oppressions of enormous public
debt. But if the game runs sometimes against us at home we must have
patience till luck turns, and then we shall have an opportunity of winning
back the principles we have lost, for this is a game where principles are at
stake."
-Thomas Jefferson
