By William Fisher
Legal experts and civil libertarians are attacking the administration of President Barack Obama for resusiscitating what they regard as “deeply flawed” military commissions to try detainees at Guantanamo Bay – and their choice of a “child soldier” as the first defendant.
They are particularly incensed that Omar Khadr, Guantanamo’s “child soldier” – a Canadian captured in Afghanistan seven years ago when he was only 15 and imprisoned ever since – is slated for the first trial to be held since Obama took office in January 2009.
The “new and improved” military commissions were part of the 2010 National Defense Authorization Act, which President Obama signed last month. It included some changes in the rules governing commission proceedings and is intended to replace – and improve upon -- the Bush-era Military Commissions Act of 2006, which the Supreme Court found unconstitutional last year.
Human rights groups and many legal experts are charging that, while the new regulations improve the Commissions to come extent, they remain not only unnecessary but dangerous because they establish a parallel system of second-class justice.
Furthermore, they point out, the actual implementation of Military Commission proceedings could be delayed for years by legal challenges – as were their predecessors.
Much of the early pushback against the Military Commissions is centering on the Khadr case. Khadr is a Canadian citizen who was arrested in Afghanistan when he was 15 years old, accused of throwing a grenade that killed an Army medic, and sent to Guantanamo Bay in 2002, where he has been imprisoned for more than seven years without charge or trial.
Khadr is accused of throwing a grenade that killed an Army medic in Afghanistan. The U.S. government has refused to acknowledge his status as a child or to apply universally recognized standards of juvenile justice in his case.
In a related development, The United Nations Children’s Fund (UNICEF) has voiced its concern about the Khadr prosecution, saying it sets a dangerous precedent for child victims of recruitment in armed conflicts.
UNICEF Executive Director Anthony Lake said in a statement that the recruitment and use of children in hostilities is a war crime, and those who are responsible – the adult recruiters – should be prosecuted.
Lake said, “The recruitment and use of children in hostilities is a war crime, and those who are responsible – the adult recruiters – should be prosecuted. The children involved are victims, acting under coercion. As UNICEF has stated in previous statements on this issue, former child soldiers need assistance for rehabilitation and reintegration into their communities, not condemnation or prosecution.
“The children involved are victims, acting under coercion,” he said, adding that former child soldiers need assistance for rehabilitation and reintegration into their communities, not condemnation or prosecution.
“The prosecution of Omar Khadr may set a dangerous international precedent for other children who are victims of recruitment in armed conflicts,” Lake added.
Lake is former National Security Advisor to former President Bill Clinton.
The Khadr trial is reportedly set to begin in August.
According to Human Rights First, no international tribunal since Nuremberg has prosecuted a child for alleged war crimes. The United Nations committee that monitors the rights of children found that the United States has held alleged child soldiers at Guantánamo without giving due account of their status as children and concluded that the “conduct of criminal proceedings against children within the military justice system should be avoided.”
The only Western citizen remaining in Guantanamo, Khadr is unique in that Canada has refused to seek extradition or repatriation despite the urgings of Amnesty International, UNICEF, the Canadian Bar Association and other prominent organizations.
A 2009 review determined that the Canadian Security Intelligence Service failed Khadr, by refusing to acknowledge his juvenile status or his repeated claims of being abused. It was also determined that Minister of Foreign Affairs Lawrence Cannon had lied when he claimed that Khadr had built bombs to kill Canadian soldiers.
The Attorney General believes that the reforms Congress recently incorporated into the Military Commissions Act will ensure that military commission trials will be fair and that convictions obtained will be secure. He has announced that some terror suspects will be tried in Federal civilian courts while others will appear before Military Commissions.
But many disagree -- fiercely.
One of them is Chip Pitts, president of the Bill of Rights Defense Committee and a lecturer at Stanford University Law School. He told IPS, “Continuing to rely on military commissions to try those otherwise unable to be convicted on strained and novel ‘war crimes’ charges (that don’t meet the usual definitions of war crimes), by contrast, proceeds from the politically popular but legally inappropriate and counterproductive ‘endless global war on terror’ mindset that has clearly been so destructive to actual national security. The fraudulent nature of the latter process is evident in the unwillingness of the new administration, like the Bush administration, to say that it will release those acquitted or whose danger remains suspected but unproven.”
He added, “It’s a very bad sign that the Obama administration chose to begin the trials with the case of alleged child soldier – who was threatened with rape by US interrogators -- Canadian citizen Omar Khadr, who is not even accused of any war crime that would violate the traditional law of war.”
He said, “The absence of age limitations for juveniles with undeveloped brains only begins the long list of continued problems with these commissions – above all the fact that their existence, operation and procedural rules blatantly contradict the laws, treaties, and policies under which the US has committed to protect human rights.”
“Maybe that’s why the Obama administration, no less than the Bush administration, still cloaks the trials and evidence in excessive secrecy and has acted against veteran reporters covering them (as happened with several reporters covering Khadr’s opening hearing,” Pitts opined.
Another critic is Prof. David Frakt of Western State University law school, the Air Force Reserve officer who successfully served as military defense counsel for a Guantanamo detainee – GITMO’s other child soldier, Mohammed Jawad, who was recently released to return to Afghanistan.
Lt. Col. Frakt has strong views on Military Commissions. He believes that “Allowing some cases to go forward in the military commissions means that some detainees are getting second-class justice.”
Frakt is also critical of the “new” Military Commissions because, like their predecessors, they fail to protect juveniles.
“It is appalling that the Obama Administration is allowing charges to go forward in the military commissions against Omar Khadr. Clearly, Omar Khadr, as a juvenile of 15 at the time of his alleged offenses, could not be tried as an adult in federal court, so they are allowing him to be tried as an adult in the military commissions, potentially making him the first child soldier to be tried and convicted as a war criminal in world history.”