Observing the Trial of Omar Khadr

April 29, 2010

By Alex Neve, Secretary General of Amnesty International Canada.  Neve is currently at Guantánamo to observe the military commissions proceedings against detainee Omar Khadr.  This is his second in a series of posts from the field.

Photo: Alex Neve at Guantánamo Bay
Photo: Alex Neve at Guantánamo Bay

Omar Khadr’s case has been in the military commission pipeline for several years – he was first charged in November 2005 under the system thrown out the following year by the US Supreme Court.  His case has had various false starts under a variety of different versions of the military commission process.

His case has been slated to come up before the latest version of military commissions for months.  Lawyers, journalists, observers, government and military officials have arrived – anticipating that key legal issues were finally going to get an airing.  All this lead time; all this preparation – you would at least expect everything to be in place.

But there is no confidence at all that things are going to get off to a smooth start.  One key piece of the equation that is missing is the set of rules to govern the military commission process under legislation passed in late 2009.  Under the revised Military Commissions Act (MCA), signed by President Obama last October, the Secretary of Defense was supposed to submit to Congress within 90 days the rules for military commissions – that is, the Manual for Military Commissions.  At the moment, the only manual that has been available is a 2007 version under the 2006 MCA.

It has now been six months since the revised MCA was passed and Omar Khadr’s hearing begins tomorrow morning (Wednesday), but the rules that will govern how the hearings run and, critically, how evidence will be handled have not yet been approved and released.  All day journalists and observers have been asking how things can go ahead tomorrow without the rules.  The answers have been decidedly unconvincing.

This evening there is a rumour that the rules may finally have been approved late in the day in Washington – some 12 hours before the hearing opens.  Whether that is more than a rumour will not become clear until the hearing gets underway.  As late as a 6 p.m. press briefing here in Guantánamo, the lead spokesperson for the prosecution team certainly wasn’t letting on that new rules were ready.  And either way is deeply troubling: going ahead without rules or going ahead with rules that have materialized at the latest possible moment.

Another outstanding and troubling issue is that the military has apparently yet to give approval for some key witnesses that the defence wants to call.  Omar Khadr’s lawyers are not able to say publicly how many witnesses are in dispute or who they are.  They do say these are witnesses who “interacted with Omar at critically dispositive times.”  Yet one more example of unfairness here – it is the prosecution who approves the witnesses the defence can call.

It is bad enough that the legal process Omar Khadr faces is unfair.  It is all the worse that it is also so uncertain and unsettled.

Stop Press: Wednesday, 28 April 2010: The Miami Herald is reporting that the Pentagon has completed the Manual for Military Commissions, and that the military judge overseeing Omar Khadr’s case received this news and decided to go forward with the pre-trial hearing beginning at 9am local time, Wednesday.

Originally posted on the Amnesty Canada blog