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.