Rotten at the Core: Day Two of the Military Commission Hearings at Guantánamo Bay

By Hina Shamsi, staff attorney with the ACLU"s National Security Project

Shamsi travelled over the weekend to Cuba where she will spend the week observing hearings in cases the U.S. government has brought against two detainees being held at the U.S. Prison at Guantánamo Bay. She will post her comments and observations in a series of blog posts that begins today and which will run throughout the week.

Just when you think it's no longer possible to be shocked by  the extremity of the Bush administration's positions in its "war on  terror," along comes a day like yesterday.  During the military  commission hearing of Omar Khadr, who was 15 when he was captured in Afghanistan, a Department of Justice attorney  told the judge that the U.S.  government may prosecute children, regardless of their age — five, 10 or 15 —  as "unlawful enemy combatants."  Later in the day, a secret government  document, disclosed by mistake,  cast doubt on the very basis for the Bush administration's case against Khadr.

During a break in the hearing, members of the press were  given copies of legal motions on the issue of whether the military commission  has the authority to try Khadr, given his status as a juvenile at the time of  his alleged offenses. Included in those papers was a classified attachment,  which, according to military commissions officials, should have been redacted,  instead of released.

The significance of the document was made clear by Khadr's  military defense counsel, Lt. Cmdr. William Kuebler. Asked to describe it later  in the day, Lt. Cmdr. Kuebler said it dispelled what he referred to as a myth  propagated by the government: that Khadr  was the only person who could have lobbed the grenade that killed U.S. soldier  Christopher Speer — the basis of the most serious charge against him. The document,  created in 2004, turned out to be an interview of a witness to Khadr's capture.  In it, the witness describes finding two  people alive in the Afghan compound in which Khadr was captured — the witness  shot and killed the first man before he saw Khadr. Then, according to Lt. Cmdr.  Kuebler, Khadr, who was 15 years old at the time, "was shot on sight — in  the back — twice — while wounded, sitting and leaning against a wall facing  away from his attackers."

After protracted negotiations during which military  commission officials demanded the document back — at one point, reporters were  told that they might not be able to attend future proceedings if they failed to  comply — officials agreed to let the press report on the document, as long as  details of names, other identifying information, location, and dates were not  revealed.

Khadr has been charged with murder, attempted murder,  conspiracy, material support for terrorism, and espionage, in a case that is  making history: should it proceed to trial, the United States could become the  first nation in modern times to prosecute for war crimes someone who was a  juvenile when he committed his alleged crimes.  His attorneys argued yesterday that Khadr should be charged and tried in  a system that permits consideration of his status as a child soldier, which,  they say, the military commissions do  not; they asked the judge to dismiss the case.

The document is important not just for the fact that it  shows another side to the Khadr story, but also because it highlights one of  the key problems with the military commissions: excessive secrecy. As Kuebler  described it, "The government's overuse of classification keeps 100  percent of the evidence outside of public view — except to the extent the  government decides to release information."

Concerns about what the government may know, how it chooses  to use its information, and the extremity of its positions are all the stronger  in the case of a juvenile like Khadr.  There's no doubt that Khadr had a troubled past (his parents were  supporters of the Taliban and al Qaeda) and the allegations against him are  serious.

Lt. Cmdr. Kuebler did not argue that Khadr couldn't be  prosecuted, but told the judge that military law, the laws of all 50 states,  federal statutes, and international standards, require that Khadr be tried in  proceedings that take into account children's greater susceptibility to adult  influence and their lesser culpability. The military commissions set up by Congress in  2006, said Lt. Cmdr. Kuebler, simply were not authorized to try juveniles  and are not equipped to take into account the special needs of children caught  up in war, who require rehabilitation and reintegration into society. According  to Lt. Cmdr. Kuebler, Khadr is a victim of the adults who were responsible for  him, not a voluntary fighter, and should be tried in a system that is able to  take into account his status as a juvenile at the time of the alleged  crimes.

In response to the defense's arguments, however, the Bush  administration takes positions that are breathtaking in their deviation from  what most people think of as a system of justice, one that considers the  culpability of an accused as an individual.  Not only has the administration been unwilling to take into account  Khadr's age at the time of his capture, it goes even further: in legal papers  made available on Sunday night, government lawyers state that "there can  be no question that Khadr's actions — including conspiring with al Qaeda for  more than five years — constitute terrorism under anyone's definition."  This means the administration is accusing Khadr of criminal conspiracy to  engage in terrorism at the age of 10.

Khadr's hearing has been recessed and we now await the judge's  decision whether the case against him will proceed.