Omar Khadr pre-trial hearings: It is underway

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By Alex Neve, Secretary General of Amnesty International Canada.  Neve is currently at Guantánamo to observe the military commissions proceedings against detainee Omar Khadr. This is his third in a series of posts from the field.

The building behind the tree on the right houses the courtroom (cameras are not allowed inside).

The building behind the tree on the right houses the courtroom (cameras are not allowed inside).

The rumours did indeed prove to be true.  Yesterday evening the government did finally approve and release a 280-page Manual for Military Commissions, laying out the rules that are to govern the conduct of Omar Khadr’s and all military commission proceedings.  But his legal team did not receive a copy of the new rules – essential to mounting any legal strategy – until shortly before proceedings were set to get underway this morning.  It came as no surprise, therefore, that they were given a few extra hours to digest the contents.  So the hearing, before it even began, was adjourned to the afternoon.

The whole fiasco was yet one more illustration of how one-sided and unfair this system is.  The judge works for the government, the prosecuting team works for the government, and as the prosecutors are in the final stages of preparing for the hearing the government is writing and finalizing the rules that will govern proceedings.  Regardless of whether they end up being the best or worst of rules, it can’t help but further the impression of the military commission process being lop-sided in favour of the government.

Things certainly began to move quickly once the hearing was underway in the afternoon however.  There was considerable legal jousting back and forth between defence and prosecuting lawyers over a number of outstanding issues.

Prosecutors are demanding that they be able to carry out their own psychiatric examination of Omar Khadr – but without either his lawyers or his own psychologist or psychiatrist present.  They are also demanding access to all of the notes, studies, test results and other documents that his psychologist and psychiatrist have used in preparing their expert reports.  They also argued that Omar Khadr’s affidavit detailing the many instances of torture and ill-treatment that he says he has suffered both in Afghanistan and at Guantánamo, should not be entered into evidence.  Instead they demand that he should personally testify about everything that is in the affidavit.  That was the one issue the judge did rule on – he decided that the affidavit can be entered into evidence for the purposes of this pre-trial hearing into the question of excluding Omar Khadr’s statements made to interrogators.  He has not ruled on whether it can be used as evidence at the actual trial scheduled to take place this summer.

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Observing the Trial of Omar Khadr

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By Alex Neve, Secretary General of Amnesty International Canada.  Neve is currently at Guantánamo to observe the military commissions proceedings against detainee Omar Khadr.  This is his second in a series of posts from the field.

Photo: Alex Neve at Guantánamo Bay

Photo: Alex Neve at Guantánamo Bay

Omar Khadr’s case has been in the military commission pipeline for several years – he was first charged in November 2005 under the system thrown out the following year by the US Supreme Court.  His case has had various false starts under a variety of different versions of the military commission process.

His case has been slated to come up before the latest version of military commissions for months.  Lawyers, journalists, observers, government and military officials have arrived – anticipating that key legal issues were finally going to get an airing.  All this lead time; all this preparation – you would at least expect everything to be in place.

But there is no confidence at all that things are going to get off to a smooth start.  One key piece of the equation that is missing is the set of rules to govern the military commission process under legislation passed in late 2009.  Under the revised Military Commissions Act (MCA), signed by President Obama last October, the Secretary of Defense was supposed to submit to Congress within 90 days the rules for military commissions – that is, the Manual for Military Commissions.  At the moment, the only manual that has been available is a 2007 version under the 2006 MCA.

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