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Guantanamo Trial Unraveling

Image has not been found. URL: /wp-content/uploads/2008/09/scotus3.jpgSupreme Court of the United States (WDCpix)

The war crimes trial of the alleged child soldier Omar Khadr at Guantánamo has new problems.

I wrote last week about the Canadian Supreme Court’s astute judgment about the case. Now the U.S. proceedings themselves seem to be unraveling.

Last week, the chief judge for the military commissions announced that Army Col. Peter Brownback had been removed from the case. According to defense attorneys, Brownback had recently threatened to suspend the case against Khadr unless the prosecution ponied up exculpatory evidence. His dismissal deepens the impression that these military commissions are being run with an eye to political goals, and the November 2008 election — which both have little to do with just process.

Image has not been found. URL: http://www.washingtonindependent.com/wp-content/uploads/2008/09/scales-150x150.jpgIllustration by: Matt Mahurin

This offers further evidence why creating of a new procedural system for terrorism-related detentions is flawed. A new system will, by definition, lack a reservoir of experienced practitioners. Any new system has glitches. While established systems, like the federal courts and the military courts-martial system, for example, have had decades to identify glitches and figure out work-arounds, a new system lacks that depth.

A bigger problem is that the new system may be vulnerable to manipulation by those who drafted the rules or have the power to tinker with them.

This is not Khadr’s first military commission trial. He was first charged on Nov. 7, 2005, under President George W. Bush’s unilateral executive order creating commissions. Proceedings began in January 2006. On the first day, two issues emerged for which the executive-order-based military commission rules had no response: whether Khadr could reject the military lawyer assigned; and whether he could have the help of Canadian counsel — Khadr is a Canadian citizen.

These commissions never had to respond. In 2006, the Supreme Court invalidated them.

But Congress quickly passed a new military commission scheme. Turning a bad idea without statutory authorization into a bad idea with a statutory footing, however, proved less than efficient. The new commissions have been equally troubled — these recent developments being about par for the course.

In addition, the former prosecutor, Morris Davis, has made serious accusations that the commissions have a political bias. He has also talked about alleged military retaliation for his whistle-blowing. Two other military commission prosecutors have seconded Davis’s concerns about politicization.

Meanwhile, even simple questions about how detainees can and should be represented remain unsettled. These might have been anticipated, based on the problems in the first Khadr proceeding. But Congress, in its hurry to pass the Military Commissions Act in time for the 2006 election, failed to address them.

The result is a system of rules riddled with ambiguities and lacking an experienced core of professionals fully versed in them. At this stage, it might be hard to prevent any one – defendant or prosecutor — from gaming or abusing the system.

Yet politicization and the distortion of justice for partisan ends do not begin to get at the problems created by the commissions. For their rules seem to allow the admission of evidence gathered through certain kinds of torture. New examples of what is called “enhanced interrogation techniques” at Guantánamo continue to emerge.

Testimony from one former detainee suggests that electric torture and a form of simulated drowning apparently close to water-boarding have been used. Before, these tactics had only been linked to CIA-related black sites.

As long as the suspicion lingers that convictions are based on evidence obtained through such techniques, the commissions will remain implausible forums for justice.

The complex task of trying terrorism suspects requires a robust system. As a recent Human Rights First report shows the U.S. federal courts in fact provide a tried and tested solution.

Yet this lesson has not been learned. This week, the Senate Judiciary Committee will hear testimony on terrorism detention and the U.S. justice system. It is likely that at least one witness, or perhaps the minority members of the committee, will push for a new scheme of preventive detention or national security courts.

These innovations — aside from the shameful echo of the Japanese internment — are unnecessary and hazardous. The experience of the military commissions shows that trying to fashion a new solution from whole cloth can be a recipe for creating yet more problems.

Aziz Huq directs the liberty and national security project at the Brennan Center for Justice at New York University School of Law. He is the co-author, with Fritz Schwartz, of “Unchecked and Unbalanced:Presidential Power in a Time of Terror.” He has written for New York Law Journal, The Washington Post and The Huffington Post.

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