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By Hina Shamsi, staff attorney with the ACLU"s National Security Project

Shamsi travelled over the weekend to Cuba where she will spend the week observing hearings in cases the U.S. government has brought against two detainees being held at the U.S. Prison at Guantánamo Bay. She will post her comments and observations in a series of blog posts that begins today and which will run throughout the week.

Just when you think it's no longer possible to be shocked by  the extremity of the Bush administration's positions in its "war on  terror," along comes a day like yesterday.  During the military  commission hearing of Omar Khadr, who was 15 when he was captured in Afghanistan, a Department of Justice attorney  told the judge that the U.S.  government may prosecute children, regardless of their age — five, 10 or 15 —  as "unlawful enemy combatants."  Later in the day, a secret government  document, disclosed by mistake,  cast doubt on the very basis for the Bush administration's case against Khadr.

During a break in the hearing, members of the press were  given copies of legal motions on the issue of whether the military commission  has the authority to try Khadr, given his status as a juvenile at the time of  his alleged offenses. Included in those papers was a classified attachment,  which, according to military commissions officials, should have been redacted,  instead of released.

The significance of the document was made clear by Khadr's  military defense counsel, Lt. Cmdr. William Kuebler. Asked to describe it later  in the day, Lt. Cmdr. Kuebler said it dispelled what he referred to as a myth  propagated by the government: that Khadr  was the only person who could have lobbed the grenade that killed U.S. soldier  Christopher Speer — the basis of the most serious charge against him. The document,  created in 2004, turned out to be an interview of a witness to Khadr's capture.  In it, the witness describes finding two  people alive in the Afghan compound in which Khadr was captured — the witness  shot and killed the first man before he saw Khadr. Then, according to Lt. Cmdr.  Kuebler, Khadr, who was 15 years old at the time, "was shot on sight — in  the back — twice — while wounded, sitting and leaning against a wall facing  away from his attackers."

After protracted negotiations during which military  commission officials demanded the document back — at one point, reporters were  told that they might not be able to attend future proceedings if they failed to  comply — officials agreed to let the press report on the document, as long as  details of names, other identifying information, location, and dates were not  revealed.

Khadr has been charged with murder, attempted murder,  conspiracy, material support for terrorism, and espionage, in a case that is  making history: should it proceed to trial, the United States could become the  first nation in modern times to prosecute for war crimes someone who was a  juvenile when he committed his alleged crimes.  His attorneys argued yesterday that Khadr should be charged and tried in  a system that permits consideration of his status as a child soldier, which,  they say, the military commissions do  not; they asked the judge to dismiss the case.

The document is important not just for the fact that it  shows another side to the Khadr story, but also because it highlights one of  the key problems with the military commissions: excessive secrecy. As Kuebler  described it, "The government's overuse of classification keeps 100  percent of the evidence outside of public view — except to the extent the  government decides to release information."

Concerns about what the government may know, how it chooses  to use its information, and the extremity of its positions are all the stronger  in the case of a juvenile like Khadr.  There's no doubt that Khadr had a troubled past (his parents were  supporters of the Taliban and al Qaeda) and the allegations against him are  serious.

Lt. Cmdr. Kuebler did not argue that Khadr couldn't be  prosecuted, but told the judge that military law, the laws of all 50 states,  federal statutes, and international standards, require that Khadr be tried in  proceedings that take into account children's greater susceptibility to adult  influence and their lesser culpability. The military commissions set up by Congress in  2006, said Lt. Cmdr. Kuebler, simply were not authorized to try juveniles  and are not equipped to take into account the special needs of children caught  up in war, who require rehabilitation and reintegration into society. According  to Lt. Cmdr. Kuebler, Khadr is a victim of the adults who were responsible for  him, not a voluntary fighter, and should be tried in a system that is able to  take into account his status as a juvenile at the time of the alleged  crimes.

In response to the defense's arguments, however, the Bush  administration takes positions that are breathtaking in their deviation from  what most people think of as a system of justice, one that considers the  culpability of an accused as an individual.  Not only has the administration been unwilling to take into account  Khadr's age at the time of his capture, it goes even further: in legal papers  made available on Sunday night, government lawyers state that "there can  be no question that Khadr's actions — including conspiring with al Qaeda for  more than five years — constitute terrorism under anyone's definition."  This means the administration is accusing Khadr of criminal conspiracy to  engage in terrorism at the age of 10.

Khadr's hearing has been recessed and we now await the judge's  decision whether the case against him will proceed.

Originally posted to ACLU on Tue Feb 05, 2008 at 11:22 AM PST.

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Comment Preferences

  •  Please post tip jar :) (11+ / 0-)

    America will never be destroyed from the outside. If we falter and lose our freedoms, it will be because we destroyed ourselves. ~Abraham Lincoln

    by GoracleFan on Tue Feb 05, 2008 at 11:26:17 AM PST

  •  Please consider reposting this important (13+ / 0-)

    diary on a non primary day.  The Military Commission Act has got to be repealed.  The depravity and desperation of the Bush Administration to prove that they are tough on terrorists, even if the terrorist is 10 years of age is astounding.

    Anyway, please consider reposting.  Thanks for the diary.

    Capital punishment is the result of the mind-set that governments may kill without the presence of imminent threat, for a theoretical benefit to society. Sarge

    by sailmaker on Tue Feb 05, 2008 at 11:44:03 AM PST

  •  I'm speechless. (12+ / 0-)

    This means the administration is accusing Khadr of criminal conspiracy to  engage in terrorism at the age of 10.

    Now the Bushies are going after the children!  It's bad enough that they hold people indefinitely without charging them, but to go after children is beyond comprehension.  

    I hope that the next president, whoever that is, makes Gitmo one of his/her priorities.

    Democrats fall in love; Republicans fall in line.

    by LynChi on Tue Feb 05, 2008 at 11:45:50 AM PST

  •  The fact that you even have to argue (6+ / 0-)

    that a juvenile is capable of criminal conspiracy at age 10 is incredible and alarming.  Its bad enough that America has ruined this child's life, does the administration really believe that he actively participated, of his own free will, in the promotion of terrorism?

    please keep us updated and good luck

    •  perhaps Bush decided that a child (1+ / 0-)
      Recommended by:
      millwood

      can be a criminal conspirator based on his own childhood experience as a criminal conspirator and doesn't realize that the family values he was raised with aren't exactly normal by anybody's standards.

      Looking for intelligent energy policy alternatives? Try here.

      by alizard on Tue Feb 05, 2008 at 07:04:03 PM PST

      [ Parent ]

  •  Bush family values. We know that Khadr (5+ / 0-)
    Recommended by:
    Cathy Willey, Valtin, jimreyn, 4Freedom, Lujane

    is not a total innocent, but treating him as an adult is grotesque. This is the first time I've heard that there is evidence that could exonerate him of the grenade throwing charge. Up to now we have been given only one side of the story. Concealing information that would exonerate him would result in a mistrial in any normal proceeding and should here.

  •  Kangaroo Courts (6+ / 0-)
    Recommended by:
    Valtin, jimreyn, 4Freedom, kurt, Lujane, rhutcheson

    "No one else could ever be admitted here, since this gate was made only for you. I am now going to shut it."- Franz Kafka, "Before the Law"

    by normal family on Tue Feb 05, 2008 at 12:08:28 PM PST

  •  Hina, this is very imortant, Thanks. (5+ / 0-)

    I hope this diary gets rescued. I'm afraid the election is burying this story.

  •  Tags updated (4+ / 0-)
    Recommended by:
    Valtin, 4Freedom, Lujane, rhutcheson

    To include Military Commissions Act

    Doe maar normaal, dan doe je al gek genoeg.

    by AndrewMC on Tue Feb 05, 2008 at 12:28:04 PM PST

  •  Thanks to ACLU (5+ / 0-)

    for fighting for basic human and civil/legal rights, and for posting here.

    The other commentators are correct that this story will get missed in the barrage of election related postings on Super Tuesday.

    It should be reposted, and certainly "rescued."

    The Bush administration is depraved in its insistence in labelling anyone it wants to control or destroy as a "terrorist."

    Who's country was Khadr in, anyhow?

    The point about his age only amplifies an already illegal and unjust process.

    How much more does the government keep secret from the defense? Even some Guantanamo prosecutors have revolted at the blatant travesty of "justice."

  •  THANK YOU (4+ / 0-)
    Recommended by:
    4Freedom, Lujane, GoracleFan, rhutcheson

    Thank you for writing this. Yours is one of the only blogs that is "minding the store."
    Under normal circumstances I would  be glued to the Commission Hearings but I've become totally focused on the primaries. The election blogs are terrific - I'm not complaining about the quality.

  •  This is a terrible turn of events. (1+ / 0-)
    Recommended by:
    rhutcheson

    Trying children as adults when those children have most likely been driven to their rage and despair by our military actions is despicable.

    I am very ashamed of what our country's leadership class is doing in our names.

    There was never a good war or a bad peace. -- Ben Franklin

    by 4Freedom on Tue Feb 05, 2008 at 01:24:40 PM PST

  •  Why does the government think (0+ / 0-)

    that he is an 'unlawful combatant'.  Just because he wasn't in uniform?

  •  Thanks so much for your comments (0+ / 0-)

    I'm glad people are so interested in the events at Gitmo even in the midst of the primaries.

    I did want to clarify that the mistakenly released document was not kept from the defense -- it was actually an attachment to one of the defense's legal motions.  The motion was made public, but the attachment should only have been released in redacted form.  In fact, although there's confusion about whose mistake it was, the chief defense counsel has said it's possible he might made a photocopying error -- he'd made copies of the legal briefs for the press and may have inadvertently included the classified attachment.  The chief defense counsel wanted to make clear that, regardless of the source of the mistake, the responsibility did not lie either with the military defense lawyers specifically representing Khadr or with prosecutors.

    That said, without the inadvertent disclosure, none of the information would have become known to the public.  And that's why the secrecy is still such a problem:  the government not only has the evidence but, through its classification authority, controls what gets disclosed -- it therefore has greater control than the defense does over the story the public and the media get.

    Khadr's case is a concrete example of why disclosure matters and the extent to which the deck is stacked against the defense.  I was talking today with Michelle Shephard, one of the Canadian reporters covering the Khadr hearing.  She's been following Khadr's case for a long time and has a book about him, Guantanamo's Child, coming out at the end of March.  Michelle told me that, in Canada, there's never been a debate about Khadr's culpability; the question always has been the legitimacy of the military commissions and whether the Canadian government should intervene and ask for Khadr to be sent back to Canada (he's the only citizen of a Western country left at Guantanamo).  But, she said, in December 2007, international pressure for Canada to intervene started increasing and yesterday's disclosure will carry that momentum forward.  In fact, today, both opposition parties in Canada urged the Prime Minister to intervene with the United States on Khadr's behalf.  It was pressure like this that contributed to Australia's decision to take David Hicks back from Guantanamo last year as part of a plea agreement.  Hicks served a nine-month sentence in Australia and was freed just after Christmas 2007.  No doubt Khadr's lawyers would welcome a decision by Canada to seek Khadr's return.

    In answer to a question raised in one of the comments -- the government takes the position that Khadr is an "unlawful enemy combatant" because of his alleged affiliation with al Qaeda, which the government says is not a regular armed force that may legitimately engage in combat under the laws of war.

    -- Hina

    Because freedom can't protect itself.

    by ACLU on Wed Feb 06, 2008 at 06:24:43 AM PST

  •  It would be interesting to get public reaction (0+ / 0-)

    if Ted Kennedy brought a 10 year old child, preferably cute with blond hair and blue eyes, before Congress and said that the Bush Administration is convinced that this child can be prosecuted under the MCA as an unlawful combatant. Theatre? Yes.  But no doubt effective.

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