Discredited Military Commissions Resume Despite Persistent Flaws

April 27, 2010 12:00 am

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ACLU At Guantánamo To Observe Proceedings Of Alleged Former Child Soldier Omar Khadr

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NEW YORK – Four months after the Obama administration missed its deadline to close Guantánamo, the deeply flawed military commissions system has resumed there with closely watched pre-trial proceedings in the case of Omar Khadr beginning this week. The American Civil Liberties Union will be present for the pre-trial hearings for Khadr, a Canadian citizen who has been in U.S. custody since 2002 for war crimes allegedly committed when he was 15. The administration is moving forward with plans to try some of the Guantánamo detainees in the broken military commissions system despite the facts that the commissions still lack a set of procedural rules and they are plagued with persistent procedural and legal problems that will inevitably lead to legal challenges, delays and doubt over the outcomes of the trials.

If Khadr’s trial goes forward as planned in July, the U.S. will become the first nation since World War II to prosecute someone for alleged war crimes committed as a child.

“It is troubling that the Obama administration is not only resuming the discredited military commissions, but testing them out on an alleged child soldier who has been held in U.S. custody for a third of his life and subjected to years of abuse,” said Jennifer Turner, an ACLU Human Rights researcher who is in Guantánamo to observe the proceedings. “Omar Khadr’s entire military commissions experience thus far has been a circus, spanning several years and 11 lawyers without ever getting off the ground. Enough is enough. If we can’t try Omar Khadr in the federal courts where he can have a real shot at due process and access to the rule of law, we must send him home to Canada.”

The Khadr proceedings will take place as the administration considers the possible use of the military commissions for the prisoners accused of involvement in the 9/11 attacks. In November, Attorney General Eric Holder announced that the U.S. would use the federal criminal courts to prosecute the 9/11 suspects. However, after political pressure from inside and outside Congress, the administration has indicated it might change course and try the 9/11 suspects in the military commissions instead. The ACLU strongly believes that the appropriate place to try all terrorism cases is in federal criminal court and that the military commissions are unable to deliver reliable justice and fair trials and should be shut down for good.

“Despite recent legislative improvements, the military commissions are incapable of delivering outcomes we can trust. It is a failed system that should have been shut down years ago,” said Jameel Jaffer, Director of the ACLU Center for Democracy. “Prisoners accused of terrorism-related crimes should be charged and prosecuted in the federal criminal courts, not in a system that is untested and unreliable and that is perceived by most of the world as illegitimate.”

Unlike the federal criminal courts, the military commissions are new and lack experience in dealing with complex international terrorism trials. Since 9/11, the military commissions have completed only three terrorism-related cases, with two of three convicted defendants already released. Federal courts, on the other hand, have successfully completed over 400 terrorism-related cases. And despite a missed deadline, no rules have yet been promulgated to comply with the latest military commissions legislation. Basic questions about how the proceedings will operate remain unanswered, such as whether a defendant in the military commissions can plead guilty to a death penalty charge.

In March, the ACLU, Human Rights Watch and the Juvenile Law Center sent a letter to Attorney General Holder and Defense Secretary Robert Gates calling on them to drop the military commissions case against Omar Khadr and either send him home to Canada or send his case to U.S. federal criminal court. A copy of the letter is available online at: www.hrw.org/node/89081

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