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By Judy Rabinovitz, Deputy Project Director, ACLU Immigrants' Rights Project

On Wednesday, I observed two hearings: the first was in the case of Omar Khadr, the young Canadian who was arrested at the age of 15 and has been detained now for more than six years. The second was the arraignment of Ahmed Ghailani, who has been charged in connection with the 1998 Tanzanian bombings, and was one of about 14 men now at Guantánamo who were subjected to the CIA's secret interrogation and detention program.

Khadr's hearing yesterday morning focused largely on issues that have been contested in every military commissions case so far: a dispute about the defense's access to information in the government's possession, including possible evidence of coercion, and a dispute over what constitutes an offense that can be prosecuted as a war crime in the military commissions. Because such fundamental issues are still unsettled, and because it appears Khadr's mental state is of concern (as I discuss below), Khadr's lawyers have asked that his trial, which is currently scheduled to start on November 10, be postponed.

The principal dispute over evidence — or "discovery" in lawyers' parlance — focused on the defense's request for access to seven U.S. "intelligence" interrogators who defense lawyers say are key to establishing the coercion Khadr initially suffered in U.S. custody in Afghanistan, while he was critically wounded. According to his lawyers, those initial harsh interrogations resulted in false information that interrogators transferred to Guantánamo. At Guantánamo, Khadr's lawyers say, the false information served as the basis for interrogations by law enforcement personnel who used more "sterile" and "benign" techniques. The prosecution has indicated it intends to rely solely on the law enforcement interrogations. Khadr's lawyers, however, argue that the reliability of the second set of interrogations is undermined by the coercion and abuse of the first set: to establish the extent to which Khadr felt coerced during the law enforcement interrogations, the lawyers say, they need to know what happened to Khadr in U.S. custody in Afghanistan.

Not surprisingly, the prosecution objected to the defense's discovery request, and said that it was both too late (four months after what prosecutors said was a court-imposed deadline) and "a fishing expedition." Still, upon questioning from the judge, the government conceded that what happened during the intelligence interrogations could impact the subsequent law enforcement interrogations. Prosecutors insisted, however, that "there needs to be a showing" by the defense that coercive interrogation practices were used, and they argued that any such allegations were entirely "speculative." This line of argument would not likely succeed in a regular military or civilian criminal court, in which the standard for discovery generally places the burden on the government to give the defense information that may assist the defense. In any event, the government's argument flies in the face of what the world knows: that coercive interrogation practices were systemically used at Bagram and Guantánamo, and Khadr himself was a victim of these practices. For just one example of an interrogator describing the practices see the recent CBC documentary which features one of these interrogators describing regretfully what he had done.

The judge did not appear impressed with the prosecution's arguments, which relied also on the assertion that providing information about, or access to, the seven interrogators three weeks before the trial would be an undue burden on the government.

The second issue discussed during the hearing was the meaning of the term "in violation of the law of war"; under the Military Commissions Act of 2006, only offenses that violate the law of war can be tried in military commissions. The government's position essentially is that once a person is found to be an "alien unlawful enemy combatant," any wrongful act by that person can be a violation of the law of war. The defense, on the other hand, argued that a person's alleged status is not enough to establish that a crime has occurred. Instead, according to the defense, the government has to show that the person engaged in acts that violate the established laws of war, e.g., causing harm to civilians or civilian property, or using prohibited means and methods of warfare such as poison gas or human shields. The judge said he would announce his decision later, but asked both sides to provide him with proposed jury instructions on the issue.

The rest of the hearing focused on the defense's request for a continuance, a request based on the fact that discovery is not yet complete (as I describe above), and also because there appears to be an issue about Khadr's mental health.

Khadr's lawyers told the judge that although the defense had requested an independent psychiatric examination of their client in May 2008, the defense's expert was not permitted to meet Khadr until October 13. Based on the expert's initial evaluation, it seems the defense submitted information to the judge (we were unable to tell what the information was) that prompted him to ask the defense if Khadr's competency to stand trial was likely to be an issue. The defense was noncommittal, saying that competency was something that needed to be determined, and to do so, the defense expert needed to establish a rapport with Khadr and further examine him, a process that could take time. The defense's argument for a continuance was supported by the fact that the delay is partly of the government's making: the prosecution fought the defense's request for an independent medical expert, delayed in providing her the necessary security clearance, and has also failed to provide the defense with Khadr's psychiatric records. Although the judge did not rule today on the defense's motion for a continuance, the hearing ended with the sense that the trial would not take place until January at the earliest.

In the afternoon, I attended the arraignment of Ahmed Ghailani, a Tanzanian, who is charged, among other things, with participation in the 1998 bombing of the U.S. Embassy in Tanzania. Ghailani's arraignment was not particularly enlightening. The judge essentially followed a script, advising Ghailani about military commission procedures, informing Ghailani that he has a right to obtain civilian counsel in addition to his assigned military counsel, and repeatedly asking Ghailani if he understood what was going on. The government has stated that it would be ready to go to trial in Ghailani's case in February, 2009.

Ghailani was indicted 10 years ago in the Southern District of New York for the same crimes that are now the basis for the military commission charges, and several of his co-defendants in the federal proceedings have already been convicted and sentenced after trial in that court. He was captured in July 2004, but instead of prosecuting Ghailani in the established, tested and credible criminal justice system, the government decided to hold him in secret custody abroad, possibly subjected him to the CIA's euphemistically-named "enhanced interrogation techniques," and then decided to try him in a military proceeding. No doubt each of these decisions will be an issue as the government's case against Ghailani proceeds.

Originally posted to ACLU on Thu Oct 23, 2008 at 01:51 PM PDT.

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