As Military Commissions Resume, Where are the Real Terrorists?

By Andy Worthington, Andy Worthington's Blog. Posted February 11, 2008.

According to a report by Jane Sutton of Reuters, the U.S. military has spent $12 million on a mobile court complex -- including prefabricated holding cells shipped to the prison by barge and cargo plane -- which is intended to be used for the trial by Military Commission of up to 80 detainees, beginning in May. As Sutton describes it, the new court building, which "looks like a khaki-colored metal warehouse on the outside and a traditional courtroom inside," has "enough room to simultaneously try up to six prisoners, lined up on faux-leather chairs at cherry-veneer tables."

Known as Camp Justice -- a name that will, no doubt, be pilloried by the many critics of the Commissions, who claim that justice is the last thing that the trials will provide -- Canada.com reports that the complex was built by the Indiana National Guard, who "marked the entrance sign with the date September 11, 2007." In what is described as "an obvious 9/11 reference," Colonel Wendy Kelly, Director of Operations for the Military Commissions, explained, "It's ironic, but that's when they started construction."

What is perhaps more ironic is that, despite the 9/11 references, and the fact that Guantánamo was, from its inception over six years ago, intended to hold and try those responsible for the 9/11 attacks, none of the defendants is accused of direct involvement in the events of that terrible day.

Omar Khadr

The first defendant to face pre-trial hearings was Omar Khadr, who is accused of murder in violation of the rules of war, attempted murder in violation of the rules of war, conspiracy, providing material support for terrorism, and spying. Khadr, whose father was an alleged financier for al-Qaeda, is at least tangentially connected to Osama bin Laden and the events of 9/11, having spent some of his childhood in a compound in Afghanistan that his family shared with bin Laden's family. There, however, the connection ends, as what he is actually charged with centers on his alleged responsibility for the killing of a U.S. soldier during a firefight in Afghanistan in July 2002.

Khadr's defense team, led by Lt. Cmdr. William Kuebler, have long insisted that, as a "child soldier," who was just 15 years old at the time of his capture, Khadr should not be subjected to a trial at all. As they stated in a brief submitted to the judge, Col. Peter Brownback, "If jurisdiction is exercised over Mr. Khadr, the military judge will be the first in western history to preside over the trial of alleged war crimes committed by a child. No international criminal tribunal established under the laws of war, from Nuremberg forward, has ever prosecuted former child soldiers as war criminals."

This was one of the main points Khadr's lawyers made during last week's hearing, and in this -- along with repeated calls for the Canadian government to act on Khadr's behalf -- they were backed up by an array of international bodies, including, in the last week alone, Unicef, the French government, and the collective weight of Human Rights Watch, Amnesty International, the Coalition to Stop the Use of Child Soldiers, and Human Rights First.

Just as significantly, Khadr's lawyers are also challenging the very substance of the war crimes charges against their client, arguing, as civilian lawyer Rebecca Snyder explained, that Khadr is "not eligible to be tried for murder as a war crime because the alleged offense occurred during a firefight under traditional rules of war." "Soldiers are nor protected targets," she told the hearing. "That is part of what war is about, killing soldiers."

The most explosive revelation in the hearing, however, which threatens to derail the entire trial, only surfaced when the authorities mistakenly released a classified document to reporters attending the hearing. At Khadr's last hearing, in November, the judge, Col. Peter Brownback, prevented the prosecution from showing a video, retrieved from the compound, which purportedly showed Khadr making and planting roadside explosives, for the express purpose of allowing the defense to examine new and "potentially exculpatory" evidence, previously concealed from the defense team.

The evidence, we were told at the time, came from a "U.S. government employee," who was an eye-witness to the firefight that led to Khadr's capture. The details were not revealed, but Carol Williams of the Los Angeles Times was emboldened enough to report that the account "contradicts the government version of events and could exonerate Khadr of the war crimes with which he is charged."

Last Monday, the truth about this "potentially exculpatory" evidence, revealed in an error that is typical of the farcical episodes that regularly threaten to undermine the Commissions' credibility, more than backed up Carol Williams' claims.

According to Michelle Shepherd of the Toronto Star, who got the story out first, Khadr was not the only person left alive when the grenade was thrown that killed Sgt. Christopher Speer. In an interview, a soldier who shot Khadr twice in the back explained that he "heard moaning coming from the back of the compound. The dust rose up from the ground and began to clear. He then saw a man facing him lying on his right side. The man had an AK-47 on the ground beside him and the man was moving. OC-1 [the soldier] fired one round striking the man in the head and the movement ceased. Dust was again stirred by this rifle shot. When the dust rose, he saw a second man sitting up facing away from him leaning against the brush. This man, later identified as Khadr, was moving … OC-1 fired two rounds, both of which struck Khadr in the back."

See more stories tagged with: military commissions, salim hamdan, mohamed jawad, omar khadr, guantanamo

Andy Worthington is a writer and historian, and author of The Guantánamo Files.

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