Back to Basics: A Military Commissions Primer

The announcement that the Obama administration plans to refer more cases to the Military Commissions process rather than federal court has set off another round of debate about the nature of threat posed by Al Qaeda and its surrogates, and it is worth reiterating some of the positions that Amnesty takes on the Global War on Terror paradigm.

First and foremost, international humanitarian law conceives of just two categories of armed conflict: international and non-international. International armed conflicts are fought exclusively between sovereign states, not between states and non-state actors. Osama bin Laden can no more declare war on the United States than you or I can.

Non-international armed conflicts — for example, civil wars, rebellions, insurgencies — involve fighting between regular state armed forces and identifiable armed groups, or between armed groups fighting one another, but only within the territory of a single State. There are rules that govern both international and internal armed conflict but they differ in certain important respects. Some basic rules — like Common Article 3 of the Geneva Conventions — apply across the board.

When the law of international armed conflict or the law pertaining to internal armed conflict applies can differ from one case to the next. The legal standing of Al Qaeda as an entity in Afghanistan may differ to its standing in Pakistan, which in turn may be different to its standing in Yemen, Europe or even the United States.

Confused? You should be. In law, this is all a matter of argument as much as fact. It is complicated and often uncertain.


Obama Surrenders on Military Commission Trials

Attorney General Eric Holder announced earlier this afternoon that Khalid Shaikh Mohammed and four other alleged co-conspirators in the 9/11 attacks will face trial before military commissions rather than in federal court.

This announcement represents yet another disappointing political compromise by the Obama administration. The President came into office pledging to restore the United States’ global reputation by closing the detention facility at Guantanamo and doing away with the widely discredited kangaroo court system cobbled together by the Bush administration. That pledge died today.

The Attorney General said he would continue to push back against Congressional interference in the judicial process but, given the spineless performance of the government to date, I wouldn’t bet against Congress having the last word.

Military commissions have proved to be a colossal failure. They started off hopelessly weighted in favor of the prosecution. Constant revisions have addressed some but certainly not all such concerns; they have also generated a great deal of cynicism and confusion about the process.

In nine years the commissions have only heard six cases, four of which ended in plea deals. That represents less than 1% of the total detainee population that has passed through Guantanamo. So, in addition to lacking credibility, military commissions are neither tried nor tested.

By way of contrast, in roughly the same period, more than 800 individuals charged in terrorism-related cases have passed through the federal court system where the conviction rate is close to 90%.

In his press conference, Attorney General Holder described the federal courts as “an unparalleled instrument for bringing terrorists to justice.” This rather begs the question: Why has the administration not fought harder to win this battle?

The President and his administration should have been out in public fighting for federal court as the proper venue for these trials. Instead there has been a deafening silence from the White House over the past year. The President clearly decided to use his political capital elsewhere.

Coming, as it did, on the same day that President Obama announced his 2012 reelection bid, today’s announcement provided a timely reminder of just how little campaign promises are worth.

Kangaroos Storm DC to Close Guantanamo!

The kangaroo photos are further down!

On January 11th, over 200 activists marched from the White House to the Department of Justice to mark the 9th anniversary of the detention facility at Guantanamo and demand an end to unfair kangaroo courts, indefinite detention and impunity for torture. The march was covered by the media, including the Washington Post and the Miami Herald.

The march was organized by Witness Against Torture, the Center for Constitutional Rights, September 11th Families for Peaceful Tomorrows and Amnesty International USA. Similar demonstrations were held around the world.

In front of the Department of Justice.

Amnesty International UK and Amnesty USA are campaigning to resolve the case of Shaker Aamer, a former UK resident with a wife and children in London who has been held without charge for over 8 years.  The UK government has asked for him back–UK Foreign Secretary William Hague even raised the case with US Secretary of State Hillary Clinton–but Shaker Aamer remains detained without charge and without explanation.

We are calling on the US government to either charge Shaker Aamer with a crime and give him a fair trial in US federal court, or release him. You can help resolve this case and get us one step closer to closing Guantanamo by emailing Secretary Clinton and President Obama right now.

This is when the snow started.

To help raise awareness about Shaker Aamer’s case, Amnesty USA activists are organizing events across America this month, includingscreenings of The Response, a 30-minute drama about Guantanamo starring Aasif Mandvi of The Daily Show with Jon Stewart. If you’d like to organize a screening click here.

We don’t want to be out in the cold and snow again next January 11th, but if Guantanamo is still open, we’ll be there!

We love kangaroos, but kangaroo courts have got to go.

On the way to the DoJ.

Funding Bill Threatens Fair Trials for Detainees


The Senate is about to vote on an omnibus spending bill which includes a provision that would represent a major setback to the fight for human rights at Guantanamo. The provision bars the spending of federal funds to move any detainee – including Sept. 11 mastermind Khalid Sheikh Mohammed – from Guantanamo to the US for any purpose, including trial, through September 2011.

The House passed the measure last week, even though most members did not realize the Guantanamo provision was part of the huge spending bill.

The Obama administration has opposed the measure. Last week Attorney General Eric Holder called the provision:

“an extreme and risky encroachment on the authority of the executive branch to determine when and where to prosecute terrorist subjects.”

This bill would stop the US from bringing terrorism suspects to justice in federal courts — the most experienced and proven forum. These are the very same federal courts that used by the Justice Department during the Bush and Obama administrations to convict more than 400 individuals of terrorism‐related crimes since 9/11. Only last month Guantanamo detainee Ahmed Ghailani was successfully convicted in a free and fair trial and will likely be jailed for the rest of his life.

Amnesty is not alone in calling on the Senate to vote against this provision. Last week a group of 17 military leaders wrote Congress, urging them “to oppose any restrictions proposed for inclusion in the fiscal year 2011 funding bill that would put politics before American values and national security and hinder the President from bringing suspected terrorists to justice.”

And many of our country’s leading national security and foreign policy experts – including General David Petraeus, General Colin Powell, Secretary of Defense Robert Gates, and five former Secretaries of State from both parties – believe that closing the Guantánamo Bay detention facility is essential to U.S. counterterrorism efforts.

There’s still time for us to pressure the Senate and block this provision, but we need you to call your Senators right now and urge them to oppose it. You can reach your Senators by calling the Capitol switchboard at 202-224-3121 or email them here.


High Stakes Poker at GTMO

This morning Omar Khadr pled guilty, at a Military Commission hearing held in Guantanamo Bay, to five charges: murder in violation of the law of war, attempted murder in violation of the law of war, providing material support to Al Qaeda, espionage and conspiracy.

Omar Khadr was only fifteen at the time of the incident out of which the charges derived. By the terms of the International Convention on the Rights of the Child he was, at worst, a child soldier. The crime of material support was not even on the statute books. The charge of espionage makes him the youngest spy outside of children’s fiction.

The action at the heart of the case – the detonation of a grenade that killed a US Army medic – has been characterized as a violation of the laws of war. Or, in plain English, a war crime. Many legal scholars are incredulous at this characterization.

International humanitarian law states that a civilian on a battlefield who picks up a weapon becomes a combatant. The penalty they pay is that they become a legitimate target for the opposing force. Khadr paid this penalty in full – he was shot twice in the chest and lost an eye to shrapnel.

The government case against Omar Khadr was a weak one. There were no eye-witnesses to the central event. Khadr’s ‘confession’ was tainted by his entirely plausible allegation that it had been elicited through coercion. The film of him assembling an IED could not be tied to an actual attack. In a real court this was far from a slam-dunk.

However, a disturbing pattern is beginning to emerge at the Military Commissions. Knowing that the odds are so heavily stacked against them and the sentences facing them so out-sized, defendants plead guilty out of desperation, grasping at the straws offered by the Prosecution.

Plea deals, while doubtless an efficient method for dispensing with cases quickly, do not always represent justice being done. They resemble more closely a high stakes game of poker – the defendant reviews his cards and then decides whether to bet on the hand he has been dealt or cut his losses by folding.

The added twist at the Military Commissions is that the house gets to make the rules and stack the deck. Khadr had already written to Judge Parrish expressing his lack of faith that he could receive a fair trial. It seems that, having studied his cards, he decided to fold after all.

AIUSA will continue to campaign against the Military Commissions system – which offer justice for neither defendents nor the victims of terrorist acts. You can take action today by going to and sending an email to President Obama or Attorney-General Holder calling for federal trials.

Khadr Trial Delayed Amidst Reports of Plea Deal

Yesterday, the military judge overseeing the flawed military commission proceedings against Omar Khadr, who has been in U.S. custody since age 15, postponed the start of the trial by a week. The trial is now scheduled to begin Monday, October 25th at Guantánamo.

The delay came amidst reports that negotiations are underway on a possible plea agreement that would avert the trial.  There is much speculation in the media about what the terms of the deal might be, and who so far has signed off on it.

While the trial might be coming to an end for Khadr, the obligation of US authorities to ensure remedy and reparation for any human rights violations that have been committed against him does not end here.

Also, the fact that the military commission system falls short of international fair trial standards is not changed by whether a plea deal is reached in Omar Khadr’s case.

Regardless of what happens with Khadr, Amnesty International will continue to call on the US to abandon the unfair and flawed military commissions and bring any Guantánamo detainee it intends to prosecute to trial in ordinary civilian federal court, in accordance with international fair trial standards.  Any detainee it does not intend to prosecute should be immediately released.

The trial of Omar Khadr began in August but came to an abrupt halt after his military defense lawyer collapsed on the first day.  The trial is flawed because it is not happening in a real court. Omar Khadr has been tortured, threatened with rape, and denied basic legal rights. Yet despite all that, his fate hangs outside a traditional judge and jury and rests with politicians and military personnel.

Amnesty International delegates have attended military commission proceedings conducted at Guantánamo over the years, including in Omar Khadr’s case. If proceedings do go ahead on October 25th, as currently scheduled, we’ll have representation there to observe the proceedings.

Amnesty International members around the world have been and continue to call for the USA to abandon Omar Khadr’s military commission trial and on the Canadian authorities to call for his repatriation. You can join us by taking action here.

Omar Khadr’s Lawyer Collapses, Trial Postponed

By Alex Neve, Secretary General of Amnesty International Canada.  Neve is currently at Guantánamo to observe the military commission trial against detainee Omar Khadr. This is the fourth post in his series from the field.

12 August 2010

Omar Khadr's defence lawyer Lt Col Jon Jackson in the media hangar, Guantánamo Bay, Cuba.

In a case that has moved so slowly for so long – it is now nearly five years since Omar Khadr was first charged under the Bush administration – much happened during the first day of his military commission trial here at Guantánamo, both expected and unexpected. Proceedings began with opening statements from the prosecution and defence. They ended in drama when Omar Khadr’s military lawyer, Lieutenant Colonel Jon Jackson, collapsed in court late in the afternoon while cross examining a witness.  He was taken to hospital by ambulance and as I write it is uncertain when the trial will resume.

Earlier the commission heard from two prosecution witnesses and viewed a video that US forces had retrieved from the compound in Afghanistan where the firefight took place that is at the heart of the case against Omar Khadr.  It is there that, as a 15-year-old, he is alleged to have thrown a grenade that fatally wounded a US soldier, Sergeant Christopher Speer. Among those present in the courtroom today, for the first time, was the widow of Sgt Speer.

For the prosecution, Jeffrey Groharing began by wheeling in a scale model of the compound where the firefight took place.  He alleged that Omar Khadr had told one of his interrogators that he was a “terrorist, trained by al-Qa’ida” and that what he was most proud of was carrying out attacks against Americans. He alleged that Omar Khadr had deliberately decided to conspire with members of al-Qa’ida to kill as many US soldiers as possible.  When it came to the question of statements and confessions obtained during the teenager’s interrogations at the US air base in Bagram in Afghanistan and subsequently in Guantánamo, the prosecutor insisted that they were the result of friendly conversations between the detainee and his interrogators and that all were freely and voluntarily given.  He made no reference to Omar Khadr’s young age when these interrogations took place.

In his opening statement for the defence, Lt Col Jackson portrayed Omar Khadr as a scared child in the company of “three bad men” on 27 July 2002 when the firefight occurred.  He blamed Omar Khadr’s late father for the fact that Omar Khadr was there in the first place, adding that “Omar’s father hated his enemies more than he loved his son”.  [Editor’s note: Members of the Khadr family, including Omar, are believed to have moved to Afghanistan when he was 11 years old. According to the Miami Herald on 12 August 2010, the prosecutor said in his opening statement that Omar Khadr had grown up in a family of “radical Islamists” and had “even lived with Osama bin Laden in an al-Qa’ida compound in Afghanistan”].


Guantanamo: ‘Jury’ selected for Omar Khadr’s military commission trial

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

11 August 2010

Alex Neve stands in front of the building housing the courtroom in Guantánamo Bay, Cuba.

Over the past two days I have been observing the process of selecting the “jury” for Omar Khadr’s military commission trial here at the US naval base at Guantánamo Bay in Cuba. Known as a “panel”, this is the group of US military officers who will decide whether Omar Khadr should or should not be convicted of any of the five charges he faces and, if they do convict, what sentence he should face.

The process began on Tuesday morning with a group of 11 men and four women, drawn from the US Army, Navy and Air Force.  The goal was to emerge at the other end with at least five officers impaneled – the necessary minimum for the trial to go ahead.  The defence and prosecution can each exclude one of the members of the pool without giving a reason, and can seek the exclusion of as many others “for cause” as the military judge overseeing the trial may accept.

The day began on a warm-hearted note.  When the side door through which Omar Khadr is escorted in by his guards opened on Tuesday morning, not only was the young defendant once again in attendance, he was wearing a grey suit, white shirt and tie.  We later found out that his Canadian lawyer had chanced upon the suit in a room in the courthouse building moments before Omar Khadr was to come into court. Now each time Omar Khadr enters or leaves the courtroom, there is a broad smile on his face that I have not seen before. It was a reminder of his youthfulness, and of how many small moments (like his first time in a suit) he has been denied during the eight years he has been locked away here — he was transferred to Guantánamo from Bagram air base in Afghanistan in late October 2002 soon after he turned 16.

Much of the first day was taken up with lawyers for both sides asking questions of the 15 potential panel members as a group, covering a wide range of topics: their views on juvenile justice, their familiarity with books or films about al Qa’ida, educational background, involvement in other kinds of military justice proceedings, and their degree of commitment to fair trial principles such as the presumption of innocence and proof beyond a reasonable doubt. Then each of the 15 officers was brought in to be questioned individually.


Omar Khadr: The Injustice Continues

By Alex Neve, Secretary General of Amnesty International Canada.  Neve is currently at Guantánamo to observe the military commission trial against detainee Omar Khadr. This is his first post in series from the field.


Alex Neve stands in front of the building housing the courtroom in Guantánamo Bay, Cuba.


It  seems difficult to believe that after being held here at Guantánamo Bay for close to eight years and having been put through an astonishing array of legal twists and turns – including charges being thrown out at one point and then reinstated – Omar Khadr is about to face trial by military commission, possibly this week if pre-trial proceedings are completed.

I’m here to observe these proceedings on behalf of Amnesty International. And quite honestly at this stage I find it very difficult to predict just what I will observe.  All that seems certain is that it will be another phase in the systematic injustice to which Omar Khadr has been subjected.

First, today there will be more legal arguments as to whether all or at least some of the statements Omar Khadr made in the course of over 100 interrogation sessions between 2002 and 2004 – first at Bagram Air Base in Afghanistan and then here at Guantánamo – will be excluded from the trial.  He has laid out detailed and credible allegations as to the many forms of physical and psychological torture and other abuse he says he was subject to at that time, including during many of the interrogation sessions.  The prosecution has maintained in its legal filings that “the accused was not tortured; nor subjected to cruel, inhuman, or degrading treatment”. Yet at a hearing in May, one of Omar Khadr’s interrogators at Bagram admitted to using a rape scenario as a fear tactic against the teenager. And it is clear that at Guantánamo, Omar Khadr was one of the detainees subjected to the sleep disruption/deprivation technique known as the “frequent flyer” program.


Time Running Out for Omar Khadr

Time is running out for Omar Khadr, his Military Commission trial will finally get underway on August 10th and it is likely to be completed within two weeks.

We don’t anticipate a very edifying spectacle. Khadr fired his hopelessly outclassed civilian defense attorneys last month and is refusing to participate any further in the proceedings. As he explained in a letter to the court:

“It is going to be the same thing with or without lawyers. It’s going to be a life sentence.”

It is hardly a surprise that after eight years of delay and prevarication, rule changes and procedural challenges, Khadr has no faith in the genuine independence of the military commission process. Few international observers do.

Omar Khadr was taken into US custody when he was 15 years old on 27 July 2002 in Afghanistan. On the right is a picture of him after being detained for eight years.

The case against Khadr is a weak one. There are no eyewitnesses to the primary

incident and the only real evidence against him are statements obtained from him under duress and a videotape of him apparently helping to plant an IED. It is not clear whether the tape is of a training exercise or an actual attack.

The judge in the case is still refusing to consider whether incriminating statements made by Khadr after his capture were obtained through torture – hardly a fanciful claim since his interrogator was actually convicted in a US court martial of abusing another detainee in the same facility.

Khadr’s remaining–military–attorney, Lt. Col. Jon Jackson, has petitioned the Supreme Court to consider the propriety of the US government maintaining in essence a separate legal system for US non-citizens. US citizens charged with terrorist offenses are directed to the federal courts not military commissions. As Lt. Col. Jackson notes: “separate is always unequal.”

Finally, perhaps most egregious of all, Khadr is being tried as an adult despite the fact that he was only fifteen when the alleged offenses he is accused of occurred. Under the terms of the Optional Protocol to the United Nations Convention on the Rights of the Child, of which the United States is a signatory, Khadr should properly be considered a child soldier.