While conservatives complain about Khalid Sheik Mohammed and four other terror suspects from Guantánamo coming to New York for trial, many legal experts and human rights groups are being equally outspoken in their criticism of the "new and improved" military commissions designated to try five other detainees.
And some are particularly incensed that Omar Khadr, Guantánamo’s "child soldier" – a Canadian captured in Afghanistan seven years ago when he was only 15 and imprisoned at Guantánamo ever since – is slated to be one of the five others to be tried before military commissions.
The "new and improved" military commissions were part of the 2010 National Defense Authorization Act, which President Barack Obama signed last month. It included some changes in the rules governing military commission proceedings and is intended to replace — and improve upon — the George W. Bush-era Military Commissions Act of 2006, which the Supreme Court found unconstitutional last year.
Human rights groups and many legal experts are charging that, while the new regulations improve the commissions to come extent, they remain not only unnecessary but dangerous because they establish a parallel system of second-class justice.
Furthermore, they point out, the actual implementation of military commission proceedings could be delayed for years by legal challenges – as were their predecessors.
Much of the early pushback against the military commissions is centering on the Khadr case. Khadr is a Canadian citizen who was arrested in Afghanistan when he was 15 years old, accused of throwing a grenade that killed an Army medic, and sent to Guantánamo Bay in 2002, where he has been imprisoned for more than seven years without charge or trial.
The U.S. government has refused to acknowledge his status as a child or to apply universally recognized standards of juvenile justice in his case.
The other child soldier, Mohammed Jawad, was released back to Afghanistan after the government failed to produce enough credible evidence to bring charges against him.
The only Western citizen remaining in Guantánamo, Khadr is unique in that Canada has refused to seek extradition or repatriation despite the urgings of Amnesty International, UNICEF, the Canadian Bar Association and other prominent organizations.
Last week, on the same day U.S. Attorney General Eric Holder was appearing before the press, the Supreme Court of Canada was hearing oral arguments in an appeal by the Canadian government on two lower court decisions that found Khadr’s rights under the Canadian Charter of Rights and Freedoms had been breached when Canadian officials interviewed him at the prison in Guantánamo in 2003 and shared the resulting information with U.S. authorities.
Khadr’s lawyers argued that Canada was complicit in his abuse and maintain that the Canadian government is obliged under international law to demand the prisoner’s return.
The U.S. attorney general believes that the reforms Congress recently incorporated into the Military Commissions Act will ensure that military commission trials will be fair and that convictions obtained will be secure.
But many disagree. One of them is Prof. David Frakt of Western State University law school, the Air Force Reserve officer who successfully served as military defense counsel for Mohammed Jawad.
Frakt has strong views on military commissions. He believes that "Allowing some cases to go forward in the military commissions means that some detainees are getting second-class justice."
He is also unclear about the rationale for a system of parallel justice. He told IPS, "The administration’s justifications for which cases are being send to federal court and which cases to military commissions don’t stand up to scrutiny. For example, they claim that the attack on the U.S.S. Cole, allegedly planned by Mr. Al-Nashiri, was a violation of the law of war and therefore should be tried in a military commission, but the government has been claiming for years that the 9/11 attacks were also violations of the law of war."
"In fact, the attack on the U.S.S. Cole was definitively not a violation of the law of war because there was no armed conflict taking place at the time of the attack. Rather, it was an isolated terrorist attack, the type of murder of U.S. service members during peacetime that we have always tried in federal courts before."
Frakt is also critical of the "new" military commissions because, like their predecessors, they fail to protect juveniles.
"It is appalling that the Obama administration is allowing charges to go forward in the military commissions against Omar Khadr," he said. "Clearly, Omar Khadr, as a juvenile of 15 at the time of his alleged offences, could not be tried as an adult in federal court, so they are allowing him to be tried as an adult in the military commissions, potentially making him the first child soldier to be tried and convicted as a war criminal in world history."
Frakt believes the military commissions are still "fundamentally flawed" for a number of reasons. He noted that there is no requirement of pretrial investigation, such as a preliminary hearing or grand jury, and that evidence derived from coerced statements may still be admitted into evidence.
"Now that that the evidentiary rules in military commissions have been tightened to more closely resemble the rules in federal courts, the real reason for the creation of military commissions — the ability to gain easy convictions on tainted evidence — has largely been removed," he added. "But the taint of the original process still lingers. The perception that the military commissions are a second-class option remains."
Since the passage of its very first incarnation, the Military Commissions Act has spent most of its time in court responding to challenges to its constitutionality.
In 2006, the Supreme Court declared unconstitutional the Military Tribunals set up by the Bush administration to try terror suspects at Guantánamo. Congress then passed the Military Commissions Act (MCA) of 2006, "To authorize trial by military commission for violations of the law of war." But the MCA was also declared unconstitutional two years later.
While litigation was ongoing – and that was virtually constant – trials at Guantánamo came to a complete standstill. That is a major reason that there were only three trials in eight years.
Many in the human rights community see a similar fate awaiting the 2009 amended version of the MCA.
(Inter Press Service)