Military Commissions and President Obama

Dear Friends,

The fifth topic addressed in the American Civil Liberties Union report entitled "Establishing a New Normal: National Security, Civil Liberties, and Human Rights Under the Obama Administration" (here) is military commissions. The first paragraph of this section of the ACLU report reads:

While campaigning for the presidency, then-Senator Obama made cogent arguments against military commission trials at Guantánamo on both principled and pragmatic grounds. He professed “faith in America’s courts” and pledged to “reject the Military Commissions Act.” In 2007 he pointed out the practical inferiority of the military commissions, noting that there had been “only one conviction at Guantánamo. It was for a guilty plea on material support for terrorism. The sentence was 9 months. There has not been one conviction of a terrorist act.”

Of course, President Obama has changed his tune dramatically on this point.  While making some good changes to the procedures, he encouraged the redrafting of the law.  He is enshrining in America a two-class system of justice and the President gets to say in which of those two systems an individual is tried.  One system is enshrined in our Constitution and our system of laws and justice.  The other system is not one that we would recognize as legitimate if any other country were to adopt it.

The first trial is just underway at Guantanamo.  It is particularly obscene that President Obama is letting the first trial be the trial of Omar Khadr, a child soldier who was only 15 at the time of the alleged offense.  This military tribunal trial by the United States government is first time that a child soldier has been tried for a war crime by a Western country since World War II.  The more I read about this case more angry I am about what is being done by my government.

For a history of this case, I would suggest you read "The Case of Omar Khadr, Canada" by Human Rights First (here).  The following are two of the opening paragraphs of that report that address the child soldier issue and the failure of the United States to live up to its legal obligations.

The International Covenant on Civil and Political Rights and international juvenile justice standards require prompt determination of juvenile cases and discourage detainment of juveniles at all except as a last resort. Such standards have not been heeded by the U.S. government in the case of Khadr. Khadr was held for two years prior to being given access to an attorney, waited more than three years prior to being charged before the first military commission, and is now in his eighth year in U.S. custody. During Khadr's time in detainment, he has been held both in solitary confinement as well as with adult detainees, contrary to international standards requiring that children be treated in accordance with their age and segregated from adult detainees. Khadr also claims he was subjected to abusive interrogation practices in violation of U.S. humane treatment standards, including Common Article 3 of the Geneva Conventions, and other binding prohibitions against torture and cruel, inhuman, and degrading treatment.
In 2002, the U.S. ratified the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, which prohibits the use of children under 18 in armed conflict and requires signatories to criminalize such conduct and rehabilitate former child soldiers as well as provide "all appropriate assistance for their physical and psychological recovery and their social reintegration." The U.S. has failed to heed these legal obligations in the case of Khadr.

The United States law requires us to rehabilitate former child soldiers not try them for war crimes so that we can kill them.

There have been many articles recently about the Khadr case because the trial has finally started.  To get a feel for how the "jury" selection went and why this second class justice system needs to be abandoned, you should read an article entitled "Guantanamo: 'Jury' selected for Omar Khadr's military commission trial" by Alex Neve at the Amnesty International website (here).  Mr. Neve sums up his overall impression of the jury selection process as follows:

What stays with me from these two days is the intensity of the prosecution’s determination to exclude anyone who had an informed view about the well-documented human rights concerns associated with Guantánamo Bay and other aspects of the USA’s post-September 11th counter-terrorism policies.  This was particularly notable in the case of the Army Lieutenant Colonel against whom the prosecution eventually used their peremptory challenge. He spoke openly about his understanding of the concerns that had arisen at Guantánamo Bay and elsewhere.  He worried about what he saw as US moral authority having been eroded.  He talked of concerns such as lengthy detention without charge, charges being brought which had limited legal precedent, and the admissibility of information obtained under torture.  He spoke of his concerns about the positions that former White House Counsel and US Attorney General Alberto Gonzales had taken on the handling of detainees and interrogation methods.  Ultimately he repeated several times that he supported President Obama’s position that it would be best to close down the Guantánamo detention facility.
The prosecution was vehement in laying out their case for why this Lieutenant Colonel should be excluded.  He was accused of disloyalty for his criticism of Alberto Gonzales.  He was described as having a hostile attitude towards the government.  And he was repeatedly chastised for having said that he “agreed with the President” when it came to Guantánamo Bay, for which he was accused of clearly being biased against the government.  One was left wondering just who the prosecution thinks the government is.

I also read a report about the proceedings that took place today posted by Daphne Eviatar for Human Rights First (here).  Ms. Eviatar's description of the courtroom proceedings is excellent.  After describing the testimony that had taken place particularly the answers to the questions asked by defense counsel, she gives her reflections on today's testimony:

After the first day of testimony for the government, I’m left wondering who really is the criminal here. Sargeant Major D described how he entered the compound, armed with an N-4 and a Glock-9mm. The compound had just been shot up by U.S. Apache helicopters and bombarded by two 500-pound bombs. After sensing a grenade and small arms fire coming from an alleyway, Major D ran to the alley and shot a man with an AK-47 and a grenade in the head and killed him. Omar Khadr, however, was seated on the ground, unarmed, in a dust-covered light-blue tunic, his back to the Major D. Khadr was not holding or aiming a gun at the Sargeant, or threatening him in any way. Yet Sargeant Major D shot him twice in the back. He then walked over and thumped him in the eye, to see if he was still alive. Surprisingly, he was.

Lt. Col. Jackson, Khadr’s defense lawyer, asked Sarg. Major D if he knows the laws of war, which prohibit killing a civilian not actively participating in hostilities. Jackson also pointed out that there was an armed civilian CIA agent accompanying the US forces that day.

Which got me thinking: who is the real war criminal here? And who gets to decide?

A big part of the hope and change that candidate Obama promised in his campaign was to restore America's image in the world and to bring back the rule of law.  President Obama has not done either of those things.  Not because the Republicans have stopped him from fulfilling a campaign promise but because he chose to break a campaign promise.  President Obama has chosen to violate our laws and our international obligations and to prosecute a child based on evidence that at best is flawed and obtained by torture and at worst is completely without foundation.

We must hold President Obama accountable especially when he has chosen to violate his oath of office, our laws and our values.

Thanks for reading and please comment,
The Unabashed Liberal