Observing the Trial of Omar Khadr

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.


Military Commissions Redux

(As originally posted on Daily Kos)

100 days have come and gone with all the accompanying media hoopla but it increasingly seems like President Obama’s first 24 hours represented the high water mark of his commitment to rolling back the human rights abuses committed by the Bush administration.

The past week has seen still further blows to campaigners’ hopes that the Obama administration would place traditional American values of accountability and the rule of law at the heart of their response to the ongoing terrorist threat.

Leaks from the Department of Justice suggest that former Bush administration lawyers Jay Bybee, John Yoo and Steven Bradbury are unlikely to face significant disciplinary action – let alone criminal charges – for their role in designing the coercive interrogation practices introduced to military and CIA detention facilities around the world in the wake of the September 11th attacks.

These latter day Tom Hagen’s were asked by the White House to cloak the Bush administration’s illegal innovation in a mantle of legitimacy. In doing so, they were not acting in good faith. Rather, like Michael Corleone’s tame lawyer, they were actively engaged in a criminal conspiracy to circumvent U.S. law.

I have been baffled by the argument that criminal charges would produce a chilling effect on lawyers asked to provide legal advice to the executive. Is this really such a bad thing? The whole point of having in-house legal counsels is to make sure the government stays within the boundaries of the law. Government lawyers should be cautious.

Also worrying are fresh leaks from inside the administration that suggest the President is seriously considering reactivating the Military Commissions put on hold when he came into office. These are the same Commissions that the President denounced on the campaign trail as “an enormous failure.”

Should the President decide to abandon a campaign pledge to “reject” the Military Commissions Act, he will be breathing life into a court system with the fewest rights for suspects of any court in the western world. His first instinct was right – we should not bastardize our judicial system to accommodate illegal practices that should have never been countenanced in the first place.

This morning John McCain and Lindsay Graham published an op-ed piece in the Wall Street Journal in which they note that 1 in 10 of the individuals released from Guantanamo have returned to the battlefield. This also means that 9 out of 10 have not.

The detainees in Guantanamo were supposed to be the worst of the worst but it turns out that 9 times out of 10 our intelligence professionals got the wrong man. The Military Commissions will take the assertions of these same professionals at face value and accord them the weight of evidence.

If the Military Commissions are reinstated we can look forward to many more miscarriages of justice. If you think this is a price worth paying for greater security, consider the damage that the cases of the Guilford Four and Birmingham Six did to the reputation of British justice.

The Obama administration is posed to go down a path that will repeat many of the mistakes of the past eight years. This is a time for moral courage not moral compromise. We can do better and we need to make sure that this White House hears that message.