Blogging from GITMO III: Play by Play of the Hearing of Omar Khadr
By James Jay Carafano Posted in War — Comments (0) / Email this page » / Leave a comment »
On a spit of land overlooking Guantanamo Bay, Cuba, more fit for a luxury hotel than a court, the U.S. Military Commission, authorized by Congress in 2006 began its first proceedings against Omar Khadr. Khadr was captured on the battlefield in Afghanistan and is accused of murder, attempted murder, providing material support to a terrorist group, and espionage. These alleged crimes include throwing a grenade that killed a U.S. soldier. Among the evidence the prosecution plans to introduce is a video captured with Khadr, showing him making and emplacing improvised explosive devices (roadside bombs).
The first surprise of the hearing was that Khadr came quietly and willingly into the court room and accepted the government provided lawyers to represent him. Khadr was 15 when he was captured—old enough to be held accountable for his crimes if convicted. Now, he is healthy looking, well-groomed, bearded young adult who respectfully answered “yes” and “no” to the military judge’s questions.
First let me tell you what did not happen in the hearing. Khadr did not yet enter a plea of “innocent” or “guilty.” His lawyers did not challenge the jurisdiction of the Military Commission—though they indicated that later they might very well do that. The case did not go to trial. The judge set dates from receiving further motions from the defense and prosecution in early December and January. So odds are there will be no full blown trial before next March at best. Still, there is lots of news from the arraignment hearing as the defense and prosecution previewed their strategies and the press and the observers (from the VFW to the ACLU) all launched into “spin.”
Most of today’s arraignment hearing of Omar Khadr (an enemy combatant captured in Afghanistan) at the U.S. Military Commission at Guantanamo Bay was taken up by Khadr’s defense team challenging the impartiality of the military judge hearing the case.
The judge, by the way, is a retired 30 year military veteran. He spent 11 of those years as a trial judge, having handled by his estimate about 1,500 cases. He volunteered to return to active duty three years ago to work on the Military Commissions. He was, in fact, the judge who threw out the original case against Khadr, requiring the government to re-file charges.
The defense case made three claims against the judge’s impartiality: (1) the judge’s view of the Hamdan Decision in which the Supreme Court ruled that Military Commission’s had to be specifically authorized by Congress showed that he had prejudice to believe the Commissions were constitutional; (2) the judge was under pressure to push through with the hearings; (3) the judges’ staff might have made improper coordination with the staff of the Military Commissions that might have prejudiced the case; (4) the judge had invested so much time and effort in the Commissions that he had a vested interest in seeing successful prosecutions.
The judge rejected the request to remove himself from the case—laying out a rationale to make the case that all of the defense’s assertions were baseless. Of course, the defense lawyers knew he would. The judge had been and answered almost all those questions in written form before the hearing. The defense lawyer was stating them in public: signaling at least one possible appeal that might be raised if Khadr is convicted.
Of course, both the judge and the lawyers did the right thing. It’s the defense lawyer’s job to think of every reasonable means possible to defend their client. It’s the judge’s job to ensure an impartial, fair, and speedy trial. Both made their case in court.
The fireworks and legal maneuvering did not end there. The prosecution is up next. Details on that to follow.