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The Washington Independent

Will Military Commissions Under Obama Differ From the Bush Era?

Spencer Ackerman

President Obama and Omar Khadr (WDCpix, The Toronto Star/

Starting this week, something will happen that was never supposed to
when Barack Obama took the oath of office. A military commission
meeting at Guantanamo Bay nearly five months after Obama said the
detention facility would cease to exist will hold a pre-trial hearing
for Omar Khadr, a Canadian citizen captured by U.S. forces in
Afghanistan in 2002 and accused of throwing a grenade that killed a
U.S. soldier. At the end of the hearing, it will likely be possible to
tell whether Obama's changes to the military commissions created and
advocated by George W. Bush - and most congressional Republicans - are
substantive or cosmetic.

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.

On November 7, 2008, three days after Obama won the presidency,
Khadr's military lawyers introduced a motion to suppress evidence
commission prosecutors sought to produce that came from Khadr's
interrogations in Afghanistan and Guantanamo Bay. Under the
commissions, evidence obtained under torture cannot be used, but the
scope of the commissions' allowance for coercively-obtained testimony
remains largely unclear. Since their creation in 2002, the commissions
have only produced three convictions, two of which were the result of
plea deals; the Supreme Court has twice ruled that the commissions
provide insufficient due process rights for defendants.

Khadr's attorneys charge that the teenaged detainee underwent over
40 interrogations in 2002 at Bagram Air Field in Afghanistan after
being shot and suffering shrapnel wounds in a battle with U.S. forces
in July 2002 in the eastern Afghan province of Khost. During those
interrogations, Khadr was given limited pain medication; had his head
hooded while "interrogators brought barking dogs into the interrogation
room"; was placed in stress positions despite his gunshot and shrapnel
wounds; and was threatened with rape. After 90 days, U.S. military
officials flew him to Guantanamo Bay, where he was again placed in
stress positions; had his hair torn out; threatened again with rape;
and was even used as "a human mop" by military police after he urinated
on the floor of his interrogation room after being placed in stress
positions for a prolonged period of time.

Information that emerged from those interrogation sessions -
basically, what Khadr told his interrogators while being tortured -
comprises a substantial portion of the prosecution's case against him.
It isn't clear how much of the government's case against Khadr relies
on what he told his interrogators after his abusive treatment. The
government will call witnesses who will attest to seeing Khadr throw
the grenade that killed Sgt. First Class Christopher J. Speer. (At
least one, Sgt. Layne Morris, has come forward in the press.)
And the government will probably also seek to introduce statements
Khadr made that it maintains were not the result of torture. But
Khadr's lawyers contended in their November 2008 motion that "all
statements made by Mr. Khadr subsequent to any statement he made in
response to coercive interrogation must also be suppressed as fruit of
the poisoned tree," a legal concept holding that the taint of
improperly acquired evidence extends to any secondary evidence it

It's a crucial question for the military commissions. Every detainee
who tried before the commissions encountered periods where they were
harshly interrogated but then later faced less-coercive interviews, "so
this is a real test case for the viability of other prosecutions," said
David Frakt, a lieutenant colonel in the Air Force Reserve
judge-advocate general corps who used to be defense counsel for
Mohammed Jawad, another juvenile held at Guantanamo Bay. For instance,
if Khalid Shaikh Mohammed and the other 9/11 conspirators who were
initially held in undisclosed CIA prisons are brought back to military
commissions, Khadr's hearing may determine whether everything they have
told their interrogators - even long after being abused - is
inadmissible before the commissions. To Jennifer Turner, a human-rights
researcher with the ACLU who will travel to Guantanamo Bay to observe
the Khadr hearing, if the judge rules that Khadr's statements to his
interrogators can be used against him, "it will show the military
commissions under Obama are no different than those under Bush."

Indeed, it is because of Obama that the issue has remained
unsettled. Upon taking office in January 2009, Obama issued executive
orders banning enhanced interrogation; vowing to close Guantanamo Bay
within a year; and suspending the military commissions while his
administration decided how it would deal with the approximately 240
Guantanamo detainees it inherited from the Bush administration. That
suspension, coupled with Senator Obama's objections to the commissions
on constitutional grounds, raised hopes among civil libertarians that
the administration would ultimately scrap its predecessors' ad hoc
approach to terrorism prosecutions.

Instead, in a May 2009 speech,
Obama pledged to reform the commissions, not abandon them. Among the
reforms he promised was to "no longer permit the use of evidence - as
evidence statements that have been obtained using cruel, inhuman, or
degrading interrogation methods." By October, Congress passed and Obama
signed the Military Commissions Act of 2009.
Section 948(r) indeed enshrines the ban on statements made owing to
those methods. But it gives judges leeway to enter into evidence "other
statements of the accused... only if the military judge finds" that they
are indeed voluntary.

And that's where Khadr's defense motion comes in. While there have
been at least two other pre-trial procedural hearings since Obama opted
to retain the commissions, none have had the significance of Khadr's.
There are ten days' worth of hearings scheduled for the prosecution and
the defense to tussle over the motion to suppress and what the Military
Commissions Act of 2009 requires for it. The Washington Independent
will be at Guantanamo Bay for the proceedings, and will provide
frequent reports - in blog posts, stories, photo and video - about what
they determine for the future of the military commissions in the age of

There are at least two additional complicating factors. First is
that while the commissions have a new law authorizing them, the
military has yet to issue a new manual for officers of the court to
understand how the procedures under the 2009 law are to be implemented.
"If you go to the website for the military commissions,"
noted Air Force Col. Morris Davis, a former chief prosecutor for the
commissions, "there is no information on who is heading up the military
commissions, no information about a new Manual for Military Commissions
that implements the changes Congress made in late 2009, and no
information about revised Rules for Military Commissions." As a result,
Davis said, "it appears we're still trying to lay the tracks after the
train has left the station, which is no way to run a railroad or a
criminal justice system."

Maj. Tanya Bradsher, a spokeswoman for the commissions, said that "a
revised Manual will be issued shortly," but added that the manual was
less important than the law. "The standards for the admissibility of
statements are set out in the Military Commissions Act of 2009, and any
procedural or evidentiary rules cannot change the standards set by
Congress," Bradsher said.

Frakt said it isn't that simple. "The military commission rules of
evidence have been substantially changed by the Military Commissions
Act of 2009, particularly with regard to the standards to be applied to
determining the admissibility of a statement," he said. "The Manual
will have significant additional guidance and discussion, because it's
the implementing regulations for this. It's possible the judge will
gather all the evidence and simply sit around and wait for the Manual
to come out before issuing a ruling." In terms of actually arguing the
motion, though, "it's still unclear what rules apply."

A second complication is how much detail about Khadr's treatment a
judge will allow the outside world to see. There has never before been
a two-week court session to examine, in large part, whether the
treatment a detainee suffered in a U.S. facility amounts to "cruel,
inhuman or degrading treatment," the standard in the Military
Commissions Act for inadmissibility. "This will be one of the first
really in-depth looks into the treatment of detainees in the early days
of the war on terror," Frakt said. "There are going to be a lot of
press and observers [at Guantanamo]. It's going to be a nightmare for
the government if they have to constantly close the hearing to talk
about things that are embarrassing to the government."

Davis, the former chief military commissions prosecutor, holds
little sympathy for Khadr, whom the government says a videotape shows
emplanting improvised explosive devices in Afghanistan. (The video does
not implicate him in the death of Sgt. Speer.) But he said his problem
was with the Obama's claim that it needs to keep the options of both
federal courts and military commissions to handle terrorism
prosecutions, a claim that struck him as both politically motivated and

"It's too bad that the Obama administration is back on its heels in
a defensive crouch, afraid to go toe-to-toe with the Cheney right-wing
fanatics, and continues to try to have it both ways with the option of
military commissions and trials in federal courts still in play," Davis
said. "Hopefully, at some point they'll grow a pair and make a choice,
but this double standard where we'll give a detainee as much justice as
we can and still ensure we get a conviction shows how hypocritical we
are when it comes to the rule of law. We talk the talk, but we don't
walk the walk."

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