Discredited Military Commissions Resume Despite Persistent Flaws

Four months after the Obama administration
missed its deadline to close Guantanamo, the deeply flawed military
commissions system has resumed there with closely watched pre-trial
proceedings in the case of Omar Khadr beginning this week. The American
Civil Liberties Union will be present for the pre-trial hearings for
Khadr, a Canadian citizen who has been in U.S. custody since 2002 for
war crimes allegedly committed when he was 15. The administration is
moving forward with plans to try some of the Guantanamo detainees in the
broken military commissions system despite the facts that the
commissions still lack a set of procedural rules and they are plagued
with persistent procedural and legal problems that will inevitably lead
to legal challenges, delays and doubt over the outcomes of the trials.

If Khadr's trial goes forward as
planned in July, the U.S. will become the first nation since World War
II to prosecute someone for alleged war crimes committed as a child.

"It is troubling that the Obama
administration is not only resuming the discredited military
commissions, but testing them out on an alleged child soldier who has
been held in U.S. custody for a third of his life and subjected to years
of abuse," said Jennifer Turner, an ACLU Human Rights researcher who is
in Guantanamo to observe the proceedings. "Omar Khadr's entire military
commissions experience thus far has been a circus, spanning several
years and 11 lawyers without ever getting off the ground. Enough is
enough. If we can't try Omar Khadr in the federal courts where he can
have a real shot at due process and access to the rule of law, we must
send him home to Canada."

The Khadr proceedings will take place
as the administration considers the possible use of the military
commissions for the prisoners accused of involvement in the 9/11
attacks. In November, Attorney General Eric Holder announced that the
U.S. would use the federal criminal courts to prosecute the 9/11
suspects. However, after political pressure from inside and outside
Congress, the administration has indicated it might change course and
try the 9/11 suspects in the military commissions instead. The ACLU
strongly believes that the appropriate place to try all terrorism cases
is in federal criminal court and that the military commissions are
unable to deliver reliable justice and fair trials and should be shut
down for good.

"Despite recent legislative
improvements, the military commissions are incapable of delivering
outcomes we can trust. It is a failed system that should have been shut
down years ago," said Jameel Jaffer, Director of the ACLU Center for
Democracy. "Prisoners accused of terrorism-related crimes should be
charged and prosecuted in the federal criminal courts, not in a system
that is untested and unreliable and that is perceived by most of the
world as illegitimate."

Unlike the federal criminal courts,
the military commissions are new and lack experience in dealing with
complex international terrorism trials. Since 9/11, the military
commissions have completed only three terrorism-related cases, with two
of three convicted defendants already released. Federal courts, on the
other hand, have successfully completed over 400 terrorism-related
cases. And despite a missed deadline, no rules have yet been promulgated
to comply with the latest military commissions legislation. Basic
questions about how the proceedings will operate remain unanswered, such
as whether a defendant in the military commissions can plead guilty to a
death penalty charge.

In March, the ACLU, Human Rights
Watch and the Juvenile Law Center sent a letter to Attorney General
Holder and Defense Secretary Robert Gates calling on them to drop the
military commissions case against Omar Khadr and either send him home to
Canada or send his case to U.S. federal criminal court. A copy of the
letter is available online at: www.hrw.org/node/89081