"Excuse Me, Mr. Judge"

Thursday’s long hearing started with a dramatic statement read by Omar Khadr. Lt. Col. Colby Vokey, his assigned military lawyer, asked the presiding officer to allow Omar to make a short statement. Mr. Khadr — who looked much older than 19 — read in English from a handwritten note:

“Excuse me Mr. Judge I’m being punished for exercising my right and being cooperative in participating in this military commission. . For that I say with my respect to you and everybody else here that I’m boycotting these procedures until I be treated humanely and fair.”

You can also see an image of Mr. Khadr’s handwritten statement on the Miami Herald Web site.

Mr. Khadr’s military lawyer explained that Mr. Khadr had been moved to solitary confinement since March 28 and that the government had not informed his attorneys or provided an official explanation for his move. The defense attorneys asserted that Mr. Khadr asked them not to move forward on his behalf. Mr. Khadr seemed desperate to challenge his conditions of confinement and used the threat of boycott as a way to express his complaints. He was not the first prisoner to utilize this threat, as my colleague Ben Wizner observed earlier.

Mr. Khadr is a Canadian citizen who was raised in Canada, Pakistan and Afghanistan, where he was captured in July 2002 when he was 15 years old. He was sent to Guantánamo in October 2002 and held without charges until November 2005. Mr. Khadr is charged with “murder by an unprivileged belligerent’ for his role in a firefight in an Afghan battlefield in which an American soldier was killed. According to his lawyers, Mr. Khadr was held for 40 months in solitary confinement, and was subjected to torture and abuse in U.S. custody both in Afghanistan and Guantánamo.

Despite his youth, he has been treated as an adult since his capture. The commission hearing today was no exception. The only contact he has with adults is with his attorneys and other adult prisoners who are facing charges before military commission.

Nothing is Normal

The presiding officer, Marine Col. Robert Chester, seemed more disturbed by the fact that he was not given a heads-up than by hearing Mr. Khadr’s allegation of ill treatment. He turned to the defense for evidence regarding this allegation and asked whether the defense was ready to present evidence. In a normal court of law, the judge would immediately inquire about the conditions of confinement and request an answer from the prosecution or the detaining authority. But in military commission proceedings, nothing is normal and the only certain thing is that the rules of today might not be the rules of tomorrow.

One of the most fundamental flaws in the system of military commissions is the uncertainty of the procedures and the lack of clarity with regard to the governing legal authorities.The defense has expressed its frustration with the procedural and security hurdles which severely inhibit their ability to carry out the defense. Military defense attorney Lt. Col. Vokey aggressively protested and complained about lack of information from the detaining authorities regarding the treatment and confinement of Mr. Khadr.

Since the decision of the Supreme Court in Rasul v. Bush, which held that the detainees had the right to access the courts, many lawyers have started to represent detainees held in Guantánamo and file writs of habeas corpus on their behalf. Most attorneys who now represent less than half of the 490 detainees do it on pro bono basis despite the unbearable restrictions. These restrictions include limited access to the prisoner and compliance with rigorous rules governing client visits, note taking with a client, and the use of a secure site for review of all notes from client interviews. For example, all lawyers’ notes have to be delivered from Guantánamo to a secure site in the Washington, D.C. area, which could take a long time before they are returned to the lawyer.

At one point in the proceedings Col. Chester directly addressed Mr. Khadr in an attempt to influence his decision to threaten boycotting the proceedings. This happened just after Mr. Khadr’s attorneys explained that he did not want them to proceed before looking into the issue of solitary confinement. The presiding officer tried to convince Mr. Khadr to put his threat of boycott aside until the defense presents evidence regarding his allegation by Friday. Col. Chester said to Mr. Khadr: “I would like you to allow us to do that if you will.”

That sparked an immediate response from his civilian counsel, Muneer Ahmed from Washington College of Law at the American University, who noted his protest over the presiding officer’s inappropriate intrusion into the lawyer-client relationship. Indeed, Col. Chester’s tone and the way he addressed Mr. Khadr raise serious concern about how the presiding officer conceived the due process rights of the prisoner and the lawyer-client relationship.

Finally, defense counsel Ahmed raised the ethical conflict and problem in allowing the proceedings to continue while Mr. Khadr is asking the attorneys not to do so. Nevertheless, the presiding officer decided to continue with the proceedings and suggested to the attorneys that if they have an ethical problem they should withdraw from representation.

If in fact the presiding officer will hear evidence regarding the treatment of Mr. Khadr and his conditions of confinement at Guantánamo, it will be the first time a military commission agrees to such proceedings. Only once before has the issue of conditions come up during the military commission proceedings, when D.C. District Court Judge James Robertson heard Salim Hamdan’s case and issued an order regarding his transfer from solitary confinement (see page 42 of the order – PDF file).