Guantanamo: 'Jury' selected for Omar Khadr's military commission trial

August 12, 2010

By Alex Neve, Secretary General of Amnesty International Canada.  Neve is currently at Guantánamo to observe the military commission trial against detainee Omar Khadr. This is the third post in his series from the field.

11 August 2010

Alex Neve stands in front of the building housing the courtroom in Guantánamo Bay, Cuba.

Over the past two days I have been observing the process of selecting the “jury” for Omar Khadr’s military commission trial here at the US naval base at Guantánamo Bay in Cuba. Known as a “panel”, this is the group of US military officers who will decide whether Omar Khadr should or should not be convicted of any of the five charges he faces and, if they do convict, what sentence he should face.

The process began on Tuesday morning with a group of 11 men and four women, drawn from the US Army, Navy and Air Force.  The goal was to emerge at the other end with at least five officers impaneled – the necessary minimum for the trial to go ahead.  The defence and prosecution can each exclude one of the members of the pool without giving a reason, and can seek the exclusion of as many others “for cause” as the military judge overseeing the trial may accept.

The day began on a warm-hearted note.  When the side door through which Omar Khadr is escorted in by his guards opened on Tuesday morning, not only was the young defendant once again in attendance, he was wearing a grey suit, white shirt and tie.  We later found out that his Canadian lawyer had chanced upon the suit in a room in the courthouse building moments before Omar Khadr was to come into court. Now each time Omar Khadr enters or leaves the courtroom, there is a broad smile on his face that I have not seen before. It was a reminder of his youthfulness, and of how many small moments (like his first time in a suit) he has been denied during the eight years he has been locked away here — he was transferred to Guantánamo from Bagram air base in Afghanistan in late October 2002 soon after he turned 16.

Much of the first day was taken up with lawyers for both sides asking questions of the 15 potential panel members as a group, covering a wide range of topics: their views on juvenile justice, their familiarity with books or films about al Qa’ida, educational background, involvement in other kinds of military justice proceedings, and their degree of commitment to fair trial principles such as the presumption of innocence and proof beyond a reasonable doubt. Then each of the 15 officers was brought in to be questioned individually.

Only a small number of the officers indicated that they knew anything much about the Guantánamo Bay detentions, the military commission process or issues related to the USA’s treatment of detainees in what the Bush administration dubbed the “war on terror”.  Most simply indicated they had no opinions and no knowledge about such topics – rather disturbing given that all of them held officer rank in the US armed forces.  Two of them did show considerable awareness, however, and were upfront about sharing their views that the Guantánamo detention facility should be closed down.  They said they were concerned about the damage it was doing to the USA’ s reputation as a “beacon of liberty”.

Also troubling was the minimal concern shown by any of the members of the pool about children being treated as adults in a “war court”, or facing a possible life sentence, or other issues relevant to Omar Khadr’s young age when he was taken into custody.  All of the potential members stated that they were comfortable with a 15-year-old being treated as an adult and charged in this way.  One did go on, however, to express concern about the fact that it had taken eight years for the case to come to trial, something of particular concern to him given his age.

The prosecution sought to have three officers dismissed for cause, all of whom had expressed opinions indicating an awareness of and concern about human rights shortcomings at Guantánamo. The defence sought to have seven dismissed. There was one officer who both sides objected to, so he was automatically excluded.  The prosecution lost their other two objections, while the defence was successful on all but one of their other six.  Each side then used their one peremptory challenge to exclude one more individual.  The result was a panel of seven members – three women and four men.

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.

Once the selection process was completed, the military judge, Army Colonel Patrick Parrish scheduled opening arguments in the trial for tomorrow, Thursday.

Read the AI briefing: USA: Denying human rights, failing justice: Omar Khadr’s military commission trial set to start at Guantánamo | Read the AI Press Release: Omar Khadr Guantánamo military trial condemned