The Troubling Track Record of Military Commissions

Military Commission Trial Observation
Human Rights First, at the invitation of the Department of Defense, is an official observer at the military commissions held at the U.S. Naval Base at Guantanamo Bay, Cuba.
Devon Chaffee – a lawyer at Human Rights First in the U.S. Law and Security Program – is in Cuba to monitor the proceedings and is reporting back on events as they unfold. She is providing updates of what she observes.

November 7, 2007
The Troubling Track Record of Military Commissions
Today I am traveling to Guantanamo Bay to observe proceedings scheduled for Thursday in the military commission trial of Canadian citizen Omar Khadr. Mr. Khadr has been detained without trial since he was first brought to Guantanamo Bay in July 2002. At the time he was 15 years old. He is now 21.

The track record of the military commission trials at Guantanamo up to this point is far from encouraging. In fact it’s dismal. After three years, the military commission system — which allows for coerced evidence and provides for far fewer safeguards than a U.S. federal or state criminal prosecution, or even a military court martial proceeding — has met with little success under any standard of measurement.
Since established in August 2004, the commissions have yet to conduct a single trial and have achieved only one conviction – against the Australian David Hicks. Mr. Hicks accepted a guilty plea in March, was given a reduced sentenced of 9 months, and will be released from Australian custody in December. My colleague Hina Shamsi, who observed the proceeding at which Mr. Hicks pled guilty, described the process as “a loss for anyone who hoped that American justice, as we traditionally understand it, would show itself in the military commissions hearing room.”
Meanwhile, approximately 320 individuals remaining at Guantanamo — none of whom have ever been found guilty of any crime, and almost none of whom have even been charged with any crime — continue to face indefinite detention without trial. While the government reportedly wants to try about one-fourth of those — 80 detainees in total — only three detainees are currently charged with crimes. And all detainees — including those who will never be tried and even those who are tried and found not guilty — face indefinite detention, according to the government.
The Question at Hand
Thursday’s hearing is mostly to determine whether Mr. Khadr is an “unlawful enemy combatant” and therefore subject to trial by military commission. Last June, military commission judge Col. Peter E. Brownback threw out the Khadr case because Mr. Khadr had not been designated an “unlawful enemy combatant.” The Department of Defense, through a process known as a Combatant Status Review Tribunal, had only determined that Mr. Khadr was an “enemy combatant.” But the U.S. government appealed to a then non-existent special military appeals court — the Court of Military Commission Review (CMCR) — which, after it was composed, held in its first decision ever that the commission judges had the power themselves to determine whether an individual was an “unlawful enemy combatant.”
Mr. Khadr has appealed the CMCR decision to the D.C. Circuit Court of Appeals, but on Tuesday the appellate court refused Mr. Khadr’s plea to block the military commission proceedings until that appeal is decided. In a motion to dismiss the appeal, the government argues that the D.C. Circuit has no jurisdiction to hear appeals until the military commission trial is completed.
Human Rights First has previously criticized the Military Commissions Act’s definition of “unlawful enemy combatant” — the definition that the judge will apply in the Khadr case — as being so broad as to include civilians with no real connection to any armed conflict. If the judge determines this week that Mr. Khadr is an “unlawful enemy combatant” he will face charges of murder and attempted murder in violation of the laws of war, conspiracy, providing material support for terrorism and spying. He thus would become the first individual to ever actually stand trial in a military commissions system that has thus far proven entirely incapable of providing any semblance of justice.
In addition to the overly broad definition of “enemy combatant” — which determines who can be subject to military commission trials — and the various ways in which these military commissions will violate international standards for fair trial, there are fundamental problems with the charges themselves. While murder and attempted murder in violation of the laws of war may be legitimate crimes, Mr. Khadr is charged with killing a U.S. combatant, an act that actually is not a violation of the laws of war. In addition, the crimes of conspiracy, spying and material support for terrorism are not war crimes and should be charged, if at all, in a regular criminal court. (The U.S. Supreme Court has already noted that conspiracy is not a crime under the laws of war.) Like other military commission crimes that are not also traditional law of war crimes, conspiracy cannot be the basis for a criminal charge where, like in the Khadr case, the conduct in question occurred before the law came into effect.
Finally, we must return to the fact that Omar Khadr was a child when first detained. International law and sound policy both emphasize the need to rehabilitate, rather than punish, child soldiers. Of all the people in Guantanamo who are actually suspected of hostile acts, Omar Khadr is possibly the worst choice for prosecution.


Published on December 7, 2007


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