Spencer Ackerman with what's at issue:
Khadr, a teenager when initially detained, has been held for nearly half his life at a facility that the Obama administration has pledged to close. He will be tried in a legal venue that Obama rejected as a Senator and embraced, in reformed fashion, as president. What happens this week at Guantanamo will determine whether Obama’s pledge that the new, revised military commissions can deliver internationally-recognized justice is meaningful: the pre-trial hearing in Khadr’s case will provide the first in-depth examination of whether Khadr’s treatment in U.S. custody amounts to torture; will determine whether prosecutors can use evidence against him acquired under abusive, coercive circumstances that civilian courts would never allow; and whether additional statements made by Khadr in subsequent and less-coercive circumstances are fair game or inextricable from his overall abuse.
The 15-year-old was in Afghanistan with his father, a supposed al Qaeda financier, when he we detained for allegedly throwing a grenade that killed an American. In the process, Khadr was shot twice. Evidence suggests that he was buried under rubble at the time of the American soldier's death.
Many have questioned why the Obama administration would pick this case, one of a child soldier who has been tortured, to be the first commissions exercise under Obama.
Carol Rosenberg of The Miami Herald (a Gitmo reporter extraordinaire) quotes former war court defense lawyer David Frakt today:
"They're starting off their very first prosecution of the Obama administration with a child soldier, a Westerner no less, and going into excruciating detail for two weeks of torture and mistreatment that he suffered,'' Frakt said. ``It's kind of the dream scenario for opponents of military commissions.''
Khadr claims he was at times beaten, left shackled so long in interrogation he urinated on himself and was subjected to solitary confinement and sleep deprivation -- claims that other detainees have also made through the years.
For a legal rundown of what's wrong in this case, read Daphne Eviatar of Human Rights First:
Equally fundamental is that the military commissions were created to try war crimes. But even if Khadr were guilty of the acts charged - murder, attempted murder, conspiracy, and aiding the enemy - those aren't really war crimes. At least, they weren't war crimes until Congress declared them to be in the Military Commissions Act of 2006 -- four years after Khadr allegedly committed them. So to try Khadr for war crimes now is a violation of the Ex Post Facto clause of the U.S. Constitution, Khadr's lawyers point out. (Khadr could, of course, be tried in a civilian court for the crimes of murder and conspiracy.)
Khadr's case, then, underscores many of the fundamental problems with the military commission system - that it has no rules, little experience, almost no precedent and barely any law to guide it.
So why did the Obama administration decide to make the case of Omar Khadr its first trial in a military commission?
If the administration is hoping to showcase the strength of its military and the president's tough stance on terrorism, this probably wasn't the best way to do it.
How this case is handled will have deep ramifications going forward with the many detainee trials in queue now. And it will interesting to see how America and the media react to another remembrance of the scores of evidence of torture inflicted upon this teenager, guilty or not, and other detainees.
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