Kos on Khadr

Hina Shamsi, an attorney with the ACLU’s National Security Project, filed this dispatch from Guantánamo Bay on yesterday ‘s military commissions hearing in the case against Omar Khadr. It’s the first of a series of posts Shamsi will file on Daily Kos this week.

Even as the attention of most Americans — and a large part of the rest of the world— is focused on tomorrow’s presidential primaries and the countdown to the end of the Bush administration, the administration continues to stubbornly defend the latest in a serious of ignominious decisions and illegal practices today in Guantánamo. I’m at the U.S. naval base this week as a human rights observer at the military commission hearings in the cases against Canadian national Omar Khadr, and Yemeni citizen Salim Ahmed Hamdan. Khadr’s hearing begins today; Hamdan’s hearing starts Thursday. Over the next few days, I’ll be blogging about developments from the proceedings.

First, a little perspective: More than 770 men have been held at Guantánamo; the population is now down to 275. That’s progress, of course, but even as the numbers go down, the costs continue to skyrocket. During the military flight to the base this Saturday, I asked a Department of Defense official how many people are now stationed there. He told me approximately 7,000: 2,500 are U.S. service personnel and the rest include what he referred to as third-party nationals — mostly Filipinos and Jamaicans — who provide the labor to keep the facilities going. How is it a wise policy choice to create an infrastructure that requires 7,000 people to imprison 275 men?

Of course, the costs to the United States are much more than financial: more significant are the moral, legal, diplomatic and political consequences of holding hundreds of prisoners in arbitrary and indefinite detention. At the heart of American values is the principle of habeas corpus, which demands due process and fair trials before an independent judiciary. The United States’ system of detention and trial at Guantánamo has, for the past six years, betrayed that principle and undermined this country’s historical position as an international champion of human rights and civil liberties.

Omar Khadr’s case is a good illustration of how far the Bush administration has strayed from the values most Americans share. One of the key issues in Khadr’s hearing, which is likely to continue into tomorrow, is whether the administration will succeed in becoming the first government in modern times to prosecute for war crimes someone who was a child when the alleged crimes were committed. The alleged facts are these: in July 2002, during a firefight in Khost, Afghanistan, U.S. Special Forces attacked and killed most of the occupants in a compound to which Khadr’s father had sent him. During that battle, the U.S. alleges that Khadr threw a grenade that killed a U.S. soldier, Sgt. Christopher Speer. Khadr was shot and bleeding when he was captured.

There’s no doubt that Khadr has been charged with serious offenses. The problem, though, is that the military commission proceedings don’t meet international — or U.S. — standards of fairness. The flaws in the system are magnified when applied, as in Khadr’s case, to a juvenile offender: the commissions have no procedures that would allow a judge to take into account the lesser moral culpability of child offenders, which all civilized nations recognize, and their greater susceptibility to coercion.

Recognition of the special needs of child offenders in the context of armed conflict are part of the law of this land. In 2002, the United States ratified the United Nations’ Optional Protocol to the Convention on the Rights of the Child on Involvement of Children in Armed Conflict. That protocol, together with internationally recognized juvenile justice standards, recognizes that juveniles caught up as participants in armed conflict should be rehabilitated and provided “all appropriate assistance for their physical and psychological recovery and their social reintegration.”

Khadr’s detention and treatment has been to the contrary. In U.S. custody, he was denied access to a lawyer for more than two years and, his lawyers say, he was severely abused while at Guantánamo. His lawyers allege that he was shackled in painful positions, threatened with rape, and used as a “human mop” to clean up his own urine during one interrogation session. As international human rights groups said in letters sent on Friday to Secretary of Defense Robert M. Gates and Canadian Prime Minister Stephen Harper, “The U.S. government’s failure to properly treat Khadr as a child in detention violated U.S. legal obligations under the laws of war, the International Covenant on Civil and Political Rights, and international juvenile justice standards.”

Khadr’s military defense counsel have asked the judge in his case to dismiss the charges against him because, they argue, the military commission does not have the resources, expertise or authority to craft remedies that would take into account his juvenile status at the time of his alleged crimes. Over the next two days, the military judge will decide whether the case can proceed.

From the outside, it may look like the military commissions are working because at least Khadr and Hamdan are being tried before a court. That’s certainly what the Bush administration would have the world believe. But while dressed up in trappings of process, the system is rotten at its core. Guantánamo was deliberately created to circumvent the rule of law. To make the system work, prisoners are denied the kind of treatment and due process that used to be a hallmark of American justice. The military commissions system cannot obscure these ugly truths.

Regardless of who is the next President, he or she will have to grapple with the Bush administration’s stubborn insistence on proceeding with a trial process at Guantánamo that lacks legitimacy and that will surely be tied up in the courts for years to come. The far better alternative would be for the administration to close Guantánamo and to use the tried and true civilian or military criminal justice systems to prosecute prisoners against whom there’s evidence of wrongdoing. Instead, this week, it looks like a broken system will limp on.

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