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By Jennifer Turner, Human Rights Researcher, ACLU Human Rights Program

On Monday, pretrial hearings resumed in the case of Canadian Omar Khadr, captured at age 15 by U.S. forces in Afghanistan.  Accused of throwing a grenade that killed an American soldier and participating in a terrorist conspiracy beginning when he was only 10 years old, Khadr has spent a third of his life at Guantánamo.  Unless a plea bargain is reached, Khadr's August military commission trial will be the first under President Obama.

Omar Khadr fired his two civilian lawyers last week, and Monday's hearing was held to determine whether Khadr could fire his military lawyer and represent himself going forward.  Khadr's demeanor as he was led into the courtroom was noticeably different than in previous proceedings.  Usually he flashes a warm smile at his lawyers, but on Monday he seemed more serious than usual.  

Khadr began by reading a hand-written statement to the court, in which he explained he fired his lawyers because the military commissions are "unfair and unjust" and "constructed to convict detainees, not to find the truth."  His tone was matter-of-fact rather than defiant, but he was plainly fed up with a process that had dragged on for five years.

In his longest address to the court during the five years of his military commission proceedings, Khadr also revealed that he had rejected a plea offer to serve five more years at Gitmo.  The deal would have required him to plead guilty to war crimes, serve five years of a 30-year sentence at Gitmo, and then possibly served more time in Canada if the Canadian government chose to require him to do so.  Khadr currently faces a maximum sentence of life imprisonment if convicted.

Khadr told the court he had rejected the plea agreement because it would "legitimize this sham process" and because he did not want to "willingly let the U.S. government use [him] to fulfill its goal."  He said agreeing to a plea offer "will give excuse for the government for torturing and abusing me when I was a child."

Khadr added, "The unfairness of the rules will make a person so depressed that he will admit to allegations made upon him or take a plea offer that will satisfy the U.S. government."  Khadr's Canadian lawyer Dennis Edney, who has no official standing before the military commission, later told reporters that Khadr had also rejected the plea offer because he "could not admit to guilt to something he did not do."  

(Last week, Sudanese detainee Ibrahim al-Qosi, pled guilty to charges of conspiracy and providing material support for terrorism as a cook and driver for al Qaeda, marking the first conviction in the military commissions system under the Obama administration.)

Military judge Army Col. Patrick Parrish then asked Khadr a series of questions to determine if he could represent himself.  Federal courts have tried and tested rules that would allow them to determine whether a traumatized young man with little formal education was competent to represent himself.  In the commissions, the military judge had to apply an untested rule created a month and a half ago.

The judge had to decide on his own which issues were relevant to Khadr's competence to represent himself, and a military prosecutor periodically interjected to suggest additional questions to ask Khadr.  When the judge asked Khadr if he was familiar with the procedural rules for military commissions, Khadr said it didn't matter since the rules "can change anytime at this military commission."  

He has a point—there have been five different sets of rules by my count, with the last rule manual reaching the island when Khadr's last pretrial session started in late April.

At two points during Monday's proceedings, the military judge appeared to be about to rule that Khadr could represent himself.  During the morning session, the judge was in the middle of ruling that Khadr is competent to represent himself when defense lawyer Lt. Col. Jon Jackson interrupted him.

But Khadr threw a wrench into the process when, after a brief recess, he announced he wanted to boycott the proceedings altogether.  He asked, "How can I ask for justice from a process that doesn't offer it?"  When pressed to explain what he meant by boycott, Khadr said he didn't intend to defend himself at all.  Refusing to hold a trial without a defense, the judge ordered military defense lawyer Lt. Col. Jon Jackson to stay on the case.  

The judge announced that Khadr will proceed to trial on August 10 as scheduled, after Lt. Col. Jackson consults his state bar association's ethics committee and the Army Judge Advocate General Corps about his ethical obligations to a client who doesn't want to be defended.  So we may be headed for another trial in which the defense remains silent.  (In one of the two trials that have taken place at Guantánamo, Ali Hamza al Bahlul was convicted in November 2008 after a one-week trial in which the defense introduced no witnesses, made no legal arguments, and put on no defense).

It would be shameful for the first military commission trial under President Obama to be the prosecution of an alleged child soldier.  And the legitimacy of any conviction in the flawed military commissions system will be open to question, but if Khadr is convicted without mounting a defense, the conviction will most certainly be viewed as illegitimate.  This is a situation created by the broken military commissions system:  Khadr's refusal to participate in this unfair process is the predictable result of a system designed to produce convictions, not justice.

The commissions system is unfit to try any Guantánamo detainee, especially an alleged child soldier who has been held in U.S. custody for a third of his life.  Omar Khadr should be repatriated to Canada, or if the evidence warrants, tried in federal courts that guarantee due process and fair trials. Time is running out for the Obama administration to do the right thing.

Originally posted to ACLU on Tue Jul 13, 2010 at 01:38 PM PDT.

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Comment Preferences

  •  Canadians are watching for the outcome of (7+ / 0-)

    this trial.  However, Harper and his Conservative government are as much to blame as the Bush or Obama administrations.

  •  Yeah, but did he throw the grenade? (1+ / 0-)
    Recommended by:

    That's kind of important, isn't it?

    Strength of character does not consist solely in having powerful feelings, but in maintaining one's balance in spite of them. - Clausewitz

    by SpamNunn on Tue Jul 13, 2010 at 01:52:23 PM PDT

    •  I mean, if he rejected the plea because he is (0+ / 0-)

      innocent, then I could see where he is tried as being important.  

      If he admits what he did, and just rejects the process, I can't really get too exercised about this.  

      Strength of character does not consist solely in having powerful feelings, but in maintaining one's balance in spite of them. - Clausewitz

      by SpamNunn on Tue Jul 13, 2010 at 01:54:10 PM PDT

      [ Parent ]

      •  Any evidence that he threw it (7+ / 0-)

        is a complete and utter mess, up to fabricated (post dated) reports. But that is just a part of the evidence mess.

        He is not being charged with real laws. I'm not at all taking the Law of War lightly, but he is charged with violating a booklet put out by the Secretary of Defense.

        Think of the source and the legitimacy of a booklet of laws, for something a serious as war crime, and in relation to the fact that his crime is throwing a grenade against U.S. Special Forces who launched a military assault on his home.

        Also think about the torture. I think it's why we have the laws in nothing more than a booklet.

      •  The highest ranking officials of the previous... (3+ / 0-)
        Recommended by:
        joanneleon, esquimaux, OHdog

        ...administration have publicly admitted to having waterboarded (ordered, enabled, and/or actively tortured) alleged terrorists and the current administration continues to indefinitely detain people who's guilt can not be ascertained because said torture has rendered the evidence tainted and questionable (unless tried in Kangaroo Courts where the standards are MUCH lower and stacked in favor of the prosecution.)  Yet this administration claims to look forward when it comes to these ADMITTED war crimes (admitted freely, PROUDLY even) while selectively looking backwards and making sure it sees only what it wants to see in its selective field of vision.

        Is this what Obama meant when he promised to restore Rule of Law?

        The gov't got John Walker Lindh to agree to a plea bargain, and chances are he didn't even know that the US was at war in Afghanistan or who he was fighting against when he was captured and tortured.

        This is a sham.

    •  No, it doesn't matter in the slightest. (1+ / 0-)
      Recommended by:

      If he did throw the grenade, then he was a child soldier engaging in legitimate acts of warfare against a military target.  He should be released, given compensation for his time in Guantanamo and given free psychological services at the US government's expense for the rest of his life.  He should get a personal apology from the President for the abuse he suffered as a child.  And we, all of us Americans, should hope that Omar will still be human enough to forgive us for what we put him through.

      If he did not throw the grenade...then all of that still applies.

      Between excessive citizen activism and excessive trust or passivity, the former is far preferable to the latter. - Glenn Greenwald

      by An Affirming Flame on Tue Jul 13, 2010 at 04:59:53 PM PDT

      [ Parent ]

  •  Thank you for the coverage here. (4+ / 0-)
    Recommended by:
    dharmafarmer, zedaker, OHdog, 4kedtongue

    I'm going to spin it slightly different.

    it has been constructed solely to convict detainees and not to find the truth
    Omar Khadr

    The crossout of "solely" is interesting. What is the purpose of the system?

    I think the system is designed to prevent more evidence of torture from making it into the official record.

    Official courtroom evidence of torture would require prosecution. Or at least make it extremely problematic not to investigate and prosecute torture in a real way.

    International obligations are involved, and fig leafs, implausible deniability, lack of evidence at a courtroom level of officialness, help us squash the obligations.

    We have a policy of looking forward, of not prosecuting Bush-era torture. The military commission system is designed to support that policy. Real trials under real rules of evidence would destroy or at least strongly undermine the policy.

    I consider the ease of conviction to be more like a side benefit, something in addition to the real goal.

    and to accomplish political and public goal.... I was told it make the U.S. government look good in the public's eyes and other political causes.

    The whole system is extremely politicized in what it means to do, in why it was designed the way it was.

  •  Tipped and Recc'd (4+ / 0-)
    Recommended by:
    joanneleon, millwood, 4kedtongue, SoCalSal

    Although I'm still bitter about ACLU's backing of Citizens United.

    I'll get over it eventually... I'm just not sure our Democracy will.

    "Trying to hold back the revision of history is always a good thing." -- Peter Christopherson

    by jethrock on Tue Jul 13, 2010 at 02:35:20 PM PDT

    •  I'm with you, jethrock (1+ / 0-)
      Recommended by:

      Although I'm still bitter about ACLU's backing of Citizens United.

      I'll get over it eventually... I'm just not sure our Democracy will.

      I won't get over that bitterness until the ACLU changes its position on free speech for corporations.

      Slavery is the legal fiction that a person is property. Corporate personhood is the legal fiction that property is a person. -Jan Edwards

      by SoCalSal on Tue Jul 13, 2010 at 04:25:51 PM PDT

      [ Parent ]

    •  Not to veer off-topic too far with you, but I (0+ / 0-)

      respect the ACLU's position on Citizens United, even though I firmly believe that more corporate spending on elections will be extremely bad for this country.

      Corporations buying elections is a problem with capitalism.  You can't keep capitalism and try to restrict things like spending in elections without doing more harm than good.  Get rid of capitalism and then you won't have corporations buying elections.  It is the only way.  Capitalism simply can't coexist with a real democracy.

      The ACLU is not concerned with the abolition of capitalism, however.  Their mission is to preserve and protect the right of all of us within the current system.  According to the system we have now, the ACLU did the right thing by being on the side of the Constitution and against unfair restrictions on free speech.

      Don't like it?  Change the system.

      Between excessive citizen activism and excessive trust or passivity, the former is far preferable to the latter. - Glenn Greenwald

      by An Affirming Flame on Tue Jul 13, 2010 at 05:09:26 PM PDT

      [ Parent ]

  •  Unfortunately, this is not just a problem of (8+ / 0-)

    Commissions system. The entire  American judicial system has long been rigged to to produce convictions and not justice.

  •  Slightly off topic (1+ / 0-)
    Recommended by:
    An Affirming Flame

    I read this article today, and it just seems to make things even worse:

    Indefinite Detention Just Got A Whole Lot Easier

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