Constitutional Law

First Military Commissions Trial Under Obama Scheduled for This Week

By Suzanne Ito, ACLU

When Omar Khadr was just 9 years old, his father took him from their home in Toronto to Afghanistan, and introduced him to al Qaeda. Six years later, he was captured by U.S. forces after a 2002 firefight in Afghanistan. When he was taken into U.S. custody, he was nearly dead, suffering from two gunshots to the back, blinded in one eye by shrapnel, and buried by rubble.

He was taken to Bagram, where he underwent three major surgeries. While has still recovering from these operations, sedated and handcuffed to a stretcher, he was interrogated and threatened with rape. During his subsequent eight-year detention at Guantánamo, he was hooded, menaced with dogs, forced to urinate on himself, endured more threats of rape and torture and subjected to the "frequent flyer" sleep deprivation program.

This week, Omar Khadr is scheduled to face the first military commissions trial under the Obama administration. During the trial, prosecutors will try to portray Khadr as an al Qaeda terrorist who allegedly threw a grenade that killed Army medic Sgt. Christopher Speer during that firefight. Khadr asserts his innocence. During pretrial hearings in May 2008, the very basis for the case against Khadr was thrown into question when a secret government document was inadvertently revealed during the hearing:

The significance of the document was made clear by Khadr's military defense counsel, Lt. Cmdr. William Kuebler. Asked to describe it later in the day, Lt. Cmdr. Kuebler said it dispelled what he referred to as a myth propagated by the government: that Khadr was the only person who could have lobbed the grenade that killed U.S. soldier Christopher Speer — the basis of the most serious charge against him. The document, created in 2004, turned out to be an interview of a witness to Khadr's capture. In it, the witness describes finding two people alive in the Afghan compound in which Khadr was captured — the witness shot and killed the first man before he saw Khadr. Then, according to Lt. Cmdr. Kuebler, Khadr, who was 15 years old at the time, "was shot on sight — in the back — twice — while wounded, sitting and leaning against a wall facing away from his attackers."

The case against Khadr is weak, and tainted by torture and coerced confessions. In an affidavit submitted in 2008, Khadr states:

During this interrogation, the more I answered the questions and the more I gave him the answers he wanted, the less [REDACTED] on me. I figured out right away that I would simply tell them whatever I thought they wanted to hear in order to keep them from causing me [REDACTED].

The United States signed and ratified the Optional Protocol on the Involvement of Children in Armed Conflict to the United Nations' Convention on the Rights of the Child (UNCRC). The optional protocol mandates the "physical and psychosocial rehabilitation and social reintegration of children who are victims of armed conflict." The Obama administration's plan to prosecute Khadr, a child soldier, flies in the face of this treaty.

ACLU Human Rights Researcher Jennifer Turner is in Guantánamo for the next two weeks to observe the pretrial hearings and trial, should it proceed. Khadr's defense attorney, Army Lt. Col. Jon Jackson, told the Miami Herald's Carol Rosenberg back in July, when Khadr attempted to fire him:

"I never envisioned a scenario in my career as an Army lawyer that would require me to defend a child-soldier against war-crimes charges levied by the United States[…] I always believed we were better than that."

We are better than that. The Obama administration should shut down the illegitimate military commissions system that has become a stain on our nation's reputation and prosecute terrorism suspects in the time-tested federal criminal courts, which guarantee due process. The commissions system is unfit to try any Guantánamo detainee, especially an alleged child soldier.

While he was running for office, then-Sen. Obama said: "As president, I will close Guantánamo, reject the Military Commissions Act, and adhere to the Geneva Conventions." But 18 months after he took office, the Obama administration plans to test the new military commissions with the prosecution of a child soldier who was tortured and abused in U.S. custody, and has spent one-third of his life in Guantánamo.

We're in for a sad week indeed.

Full post as published by Blog of Rights on August 10, 2010 (boomark / email).