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By Jamil Dakwar, Director of the ACLU's Human Rights Program. Jamil is in Guantánamo Bay this week to observe the Military Commissions hearings of three detainees.

You can listen to a podcast of Jamil talking about this week's military commissions in Guantánamo at

From the outside, the system of military commissions at Guantánamo Bay may appear to be open and transparent to some: there's public hearings, media coverage, and nongovernmental organizations (NGOs) like the ACLU are invited to observe. But when you are here, you realize that this system has been engineered to produce convictions and that there are significant limitations on lawyers' access to information even in the early stages. Friday’s hearing was yet another example of how secrecy has become the norm, and open and transparent processes the exception.

Canadian national Omar Khadr was 15 when he was captured by U.S. forces in Afghanistan. Now 21, he is charged with murder, attempted murder, conspiracy, material support, and espionage. The murder charge in Khadr's case relates to a 2002 incident in Afghanistan in which Khadr is alleged to have thrown a grenade that killed Army Sgt. Christopher Speer. The other charges are based on his alleged links to, and support for, al-Qaeda — beginning, allegedly, when he was 10 years old. Today’s hearing was focused on some of the more than 50 discovery motions that were filed by his defense team in preparation for his trial, including 10 motions that were filed in the past week alone.

The existence, let alone content, of these motions is rarely made public in a timely manner, as the rules of the military commissions make it impossible to release simple motions without passing a rigid security check by the Office of Military Commissions. Additionally, a number of conferences between the parties regarding classified evidence are held in judge's chambers, including secret meetings between the judge and prosecution — defense counsel isn't present — or the security officer of the military commission and the military judge. So far the military judge, Col. Peter E. Brownback III, has signed four protective orders which limit the sharing of information with the military defense counsel, Navy Lt. Cmdr. William C. Kuebler, in spite of Kuebler's high security clearance. While these matters are discussed, NGO representatives like myself sit in the back of the courtroom listening to the exchanges between the military judge, the prosecution, and the defense team.  We try to guess the nature and content of the motions and struggle to put together the pieces of the puzzle regarding the evidence on which the prosecution will be presenting to prove its case.

For example, in one of the discovery motions we learned that the original videotape documenting the firefight in the military compound in Afghanistan was found in Guantánamo. Moreover, we learned that, as a result of another discovery motion, other U.S. soldiers who were present near the firefight and who were interviewed by the defense counsel suggested that Speer might actually have been killed by friendly fire.

Another example was with regard to documents in the possession of the government of Canada, which have been the subject of a legal struggle. The Supreme Court in Ottawa will soon decide whether to hand Khadr’s Canadian lawyers the documents, including a report which the prosecution claimed was missing and which might help his defense before the military commissions. From today’s hearing we learned that official representatives of the foreign ministry of Canada had met with the prosecution and Khadr’s defense lawyers.  The Canadian official produced a copy of a U.S. document, which Kuebler asserts includes crucial evidence to the defense of his client and could prove Khadr's innocence. Even though the U.S. declassified the document before it was turned over to the Canadian government, the U.S. is now demanding its return because some of its content might still be classified.

There is no question that it is extremely hard, after six years, to conduct a trial of an individual who was captured on the battlefield thousands of miles away.  Nevertheless, there is no excuse for the way the government is dealing with these cases, trying to withhold evidence it considers classified in what the defense has called "selective disclosure," and pushing the proceedings to move forward at any cost.

What struck me again and again after observing this week’s hearings is the disparity in the allocation of resources — both material and human — available to the prosecution and the defense team. In Khadr’s case, the prosecution team outnumbers the defense by three lawyers. The level of secrecy surrounding this system is also an issue of high concern. At times it looks like the government is exploiting classified information and manipulating access to information in the service of what appears to be a show trial (by linking Khadr to the attacks of 9/11 through a flawed conspiracy theory); one which is hardly independent from political influence and subject to prosecutorial abuse of power.

Originally posted to ACLU on Sat Apr 12, 2008 at 08:54 AM PDT.

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Comment Preferences

  •  These are show trials (5+ / 0-)

    and they don't even attempt to hide the fact that that's exactly what they are.

    This is American Justice?

    "It is through disobedience that progress has been made, through disobedience and through rebellion." Oscar Wilde, 1891

    by MichiganGirl on Sat Apr 12, 2008 at 09:10:25 AM PDT

  •  Keep taking notes!!!! (4+ / 0-)
    Recommended by:
    skrekk, willb48, csaw, Nailbanger

    We need all the information that you can capture.  It will take a long time to get to the bottom of what has happened in this administration, and we need your assistance.  Thanks!

  •  Thanks for what you are doing. (1+ / 0-)
    Recommended by:

    These trials are nothing short of scandalous and disgraceful.  Not to mention the legislation that enabled them.

  •  Military Justice (0+ / 0-)

    This past year I was allowed to read some witness depositions, or what the Army tried to pass off as depositions, for a murder trial.  The defense attorney told me all of the obstacles he was facing just in the discovery phase of the trial.  Missing evidence, refusal to disclose evidence that could exonerate his client, inability to question witnesses, etc.  His explanation was that in most military trials, the prosecuting attorney either doesn’t want to be bothered with the truth or knows what actually happened and is trying to protect someone higher up the chain of command.

    Scary to think of the consequences for this sort of justice.

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