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US: Makeshift Military Commissions Rules Unfair

Trial of Canadian Youth Should Be Transferred to Federal Court

Ad hoc US military commission rules for the trial of Omar Ahmed Khadr, the 21-year-old Canadian who has been detained at Guantanamo since he was 15, are grossly unfair, Human Rights Watch said today. Human Rights Watch called for Khadr’s trial to be moved to federal court.

“Once again, the military commissions are concocting rules that are fundamentally unfair,” said Jennifer Daskal, senior counterterrorism counsel at Human Rights Watch. “It’s time for the Bush administration to recognize that its legal experiment has failed.”

On Thursday, a military judge at Guantanamo Bay will determine whether Khadr is an “unlawful enemy combatant” who can be tried by military commissions. He is charged with killing a US soldier during a firefight in Afghanistan in 2002.

This ruling is important because, under the 2006 Military Commissions Act, the military commissions at Guantanamo may only prosecute persons determined to be “unlawful enemy combatants.”

In June, a military judge dismissed the case against Khadr because no competent body had made that determination (a Combatant Status Review Tribunal had determined that he was an enemy combatant, but not an “unlawful” enemy combatant). The government appealed the dismissal to a hastily constituted Court of Military Commissions Review, which reversed the dismissal, telling the military judge he should make the determination himself, but otherwise providing no guidance.

A day later, the military judge ordered Khadr to submit materials that he will rely on to refute his classification as an unlawful enemy combatant. But the judge ordered Khadr to do so on the same day that the government submitted material in support of the determination. In doing so, the judge is requiring Khadr to rebut evidence he has not yet seen – making it extremely difficult to effectively defend against the classification.

The military judge is also prohibiting Khadr from citing international, constitutional, or criminal law in challenging his designation as an unlawful enemy combatant, unnecessarily preventing him from raising legally pertinent issues.

“The possibility that a judge would try to determine combatant status without any reference to international law is shocking,” said Daskal. “Even the military commissions appeals court recognized the importance of consulting the Geneva Conventions and other international law.”

In addition, neither the military judge, the military commissions appeals court, nor the applicable rules make clear what burden of proof standard applies to the determination of combatant status, whether Khadr will be permitted to present additional evidence and witnesses to dispute his designation as an unlawful enemy combatant at the hearing, and whether the government is obliged to turn over all exculpatory evidence prior to the hearing.

“The uncertainty surrounding Khadr’s proceedings highlights once again the error of attempting to create an entirely new court system from scratch,” said Daskal.

Human Rights Watch also criticized the United States government for ignoring Khadr’s juvenile status during his detention. The US government incarcerated Khadr with adults, failed to provide him any educational opportunities, and denied him any direct contact with his family. It is now trying him in exactly the same way as adult detainees at Guantanamo, without any consideration for the age at which he committed his alleged offenses.

Khadr has told his attorneys that he has been beaten, denied adequate medical treatment, held in solitary confinement for extended periods, and left bound in uncomfortable “stress positions” until he soiled himself.

His treatment in detention also conflicts with the United States’ international obligations to promote the demobilization and rehabilitation of child soldiers. Under a treaty banning children under the age of 18 from participating in armed conflict, ratified by the US in 2002, the US is obliged to assist in the demobilization and rehabilitation of former child soldiers within its jurisdiction. In 2004, the Pentagon released three children from Guantanamo, who were believed to have been between the ages of 13 and 15 at the time of their capture, placing them in rehabilitation programs operated by the United Nations in Afghanistan.

However, it refused to consider Khadr for a similar rehabilitation program, or to provide him with any special protections at Guantanamo in accordance with his age. “For the past five years, the United States has turned a blind eye to Khadr’s rights as a child,” said Daskal. “The US should not now add insult to injury by prosecuting Khadr in an ad hoc and unfair military commission system.”

Background

Khadr is one of three Guantanamo detainees currently subject to military commission charges. Charges against the second – Salim Hamdan – were also dismissed for lack of jurisdiction in June. Hamdan’s case is now slated to go forward in December. A third set of charges was filed against Mohammad Jawad in October, a 22-year-old Afghan, who has been in US custody since he was 17. The case against Jawad has not yet been formally referred for trial.

The only person to be convicted by the military commissions – David Hicks – pleaded guilty in April 2007 to providing material support to terrorism and is now finishing the last weeks of his nine-month sentence in his native Australia.

Approximately 320 detainees continue to be held at Guantanamo without charge. Under the terms of the Military Commissions Act of 2006, they are prohibited from bringing habeas corpus petitions to challenge the legality of their detention. The constitutionality of these habeas-stripping provisions is being reviewed by the Supreme Court.

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