November 9, 2007
When Omar Khadr, the 21-year-old Canadian walked into the Guantanamo courtroom escorted by three military police on Thursday he seemed calm. His boyish but bearded face was free of obvious emotion. This, after all, was the third time that the Pentagon has tried to bring charges against him in the Guantanamo-based military commissions.
The first round of charges were dismissed in 2006, when the Supreme Court ruled the former military commission system illegal. The second set of charges was dismissed in June by the same military judge presiding yesterday, Colonel Peter E. Brownback. Back then, Brownback ruled he did not have jurisdiction to proceed because Khadr had never been determined to be an "unlawful enemy combatant," which is a prerequisite for military commission jurisdiction. But his ruling had been overturned by a hastily constituted Court of Military Commissions Review, so Khadr was back in the courtroom yet again.
The first order of business was one of representation. Brownback asked Khadr whether he was satisfied with his military defense counsel. Khadr said that he was. Next came what's known as the "voir dire" of the judge – during which the parties get to cross-examine the judge to ascertain whether he is sufficiently impartial and fit to serve.
Khadr's military defense counsel, Lt. Commander William Kuebler, fired off a series of questions. How well did Brownback know the "convening authority"? Did he fraternize with the prosecution? How was he selected to be a military commission judge?
Then came the bombshell.
What did he think of the Supreme Court's ruling in Hamdan v. Rumsfeld – the 2006 Supreme Court case that had struck down the former military commissions? "Do you agree that Hamdan held the prior system illegal?" asked Kuebler.
"No, I don't," answered the judge.
Never mind that the Supreme Court ruling stated that "the rules specified for Hamdan's trial are illegal" (emphasis added). Never mind that the court concluded that the previous military commissions violated statutory requirements of the Uniform Code of Military Justice, as well as the basic fair trial requirements of the Geneva Conventions. And never mind that the Supreme Court case was about the very system in which Brownback was a presiding judge. It almost seemed as if Judge Brownback had never read it.
Brownback was then asked what law he would rely on as judge in the military commissions. The Military Commissions Act and related Department of Defense rules and orders, the judge answered. Notably, Brownback made no mention of the US constitution or international law. But this answer was not much of a surprise. Prior to the hearing, he had issued an order explicitly prohibiting the defense and prosecution from raising constitutional, criminal, or international law in arguing whether the military commissions had jurisdiction to proceed.
Kuebler then challenged Brownback's impartiality, arguing that the judge's blatant misinterpretation of the Hamdan ruling, coupled with his apparent disregard for both the constitution and international law would make it impossible to challenge the commission's legitimacy. As Kuebler accurately noted, the question of the commission's legitimacy is both key and undecided.
The prosecutor, Major Jeffrey Groharing, called these arguments "irrelevant." Not surprisingly the judge agreed.
Next the judge ruled that, given the appeals court's reversal of his June dismissal, he would presume jurisdiction to proceed, but left open the possibility for the defense to formally challenge this assumption at a later date. The defense acquiesced, while making clear that they would formally challenge this issue.
The prosecutor – ignoring the fact that he just won – insisted that he should still be allowed to play a video allegedly showing Khadr making and planting explosive devices in Afghanistan. The judge rejected the request, saying it was unnecessary given that the prosecution had nothing he had to prove.
And then the hearing was over. Once again the proceedings met my expectations in only one way: They were as unpredictable as expected.
We – myself and a few other representatives of non-governmental organizations – paraded out to the blazing hot sun, where we were allowed a few minutes interaction with the press. (Our military handler told us the day before that it was his job to "keep us away from the media." He seemed to be taking a temporary respite from this particular responsibility.)
We were escorted to outskirts of the media center where the journalists were housed, but were not allowed in. Mosquitoes buzzing and biting, the sun blazing, we held court in a small grassy area near the press center until neither we nor the press could stand the stifling heat. Once we were escorted away, the real press conference began. We learned the details later.
The defense counsel told the press that on Tuesday, just two days before the hearing, the prosecution informed the defense about a "potentially exculpatory witness." The details are either classified or sufficiently sensitive, and could not be disclosed.
The prosecution claimed that they had just learned of his existence – and informed the defense within hours. But according to defense counsel, at least some part of the government has known about this evidence since the day of Khadr's arrest, in July 2002.
Why hadn't it been disclosed?
And why was the prosecution pushing for an evidentiary hearing on Khadr's status – knowing that the defense had not yet had a chance to review the potentially exculpatory evidence?
Once again, it seems that the government is more interested in securing a conviction than anything else. The questions of whether or not Khadr can lawfully be tried by the commissions or is actually guilty of the crimes for which he has been accused seem secondary.
Too bad for them that their track record has been so poor. After nearly six years, the government has been able to secure just one conviction, and that was for Australian David Hicks, a former kangaroo skinner who pleaded guilty and is now serving the last weeks of his nine-month sentence in Australia.