In a second development this week in the fraught story of the Military Commissions –- the US administration’s blundering attempts to subject detainees at Guantánamo to a second-tier legal system, designed to prevent all mention of torture and to realize pre-ordained verdicts of guilt –- it was announced on Monday that Col. Peter Brownback had ordered the trial by Military Commission of Omar Khadr, the Canadian citizen who was just 15 years old when he was captured in Afghanistan in 2002, to proceed on 8 November.
The story of Khadr’s involvement with the Commissions is long and complicated, and new readers are recommended to read previous articles here. In a nutshell, however, when Khadr’s Commission was convened in June, it was the self-same Col. Brownback who threw the case out of court, arguing that the legislation that had mandated his trial –- the Military Commissions Act of 2006 –- had stipulated that only “illegal enemy combatants” could be tried by Military Commission, whereas Khadr –- and every other detainee in Guantánamo, for that matter –- had only been judged as “enemy combatants” in the tribunals at Guantánamo that had made them eligible for trial by Military Commission in the first place.
Confused? It only gets more surreal. Last week, Khadr’s lawyers, led by Lt. Cmdr. Bill Kuebler, filed a federal court appeal questioning whether the Commissions were legally entitled to try Khadr at all, and asked an appeal court in Washington to uphold Brownback’s original dismissal of the charges in June. Dismissing Khadr’s lawyers’ concerns –- that there was “the prospect of ongoing proceedings in multiple courts, as well as the propriety of going forward despite a substantial question as to whether the trial can legally proceed in the first place” –- Brownback responded by citing the need to proceed in a “judicious manner,” whatever that means.
Evidently fortified by a recent decision in another appeals court –- the United States Court of Military Commission Review, which was hastily cobbled together after Brownback himself had disabled the Commissions in June –- the Defense Department argued, as Lt. Cmdr. Kuebler described it, that “military commission rules issued by the Department of Defense, which explicitly grant the federal appeals court jurisdiction in the case, are invalid. The judge indicated that he was not deciding whether the Court of Appeals had jurisdiction, yet the practical effect of his ruling is to nullify Omar’s right to seek meaningful review of last month’s decision by a special military appeals court allowing the trial to resume.”
“The Defense Department is so desperate to validate this broken process that they will disregard just about any concern of judicial economy or fairness to the accused,” Kuebler added. “They write a rule giving Omar a right to appeal, they tell Omar he has a right to appeal, and when he appeals, they claim he doesn’t have a right to appeal –- Alice in Wonderland really is the only way to describe it.”
That’s not bad, Lt. Cmdr. Kuebler, but “Malice in Blunderland” might be even more apt.
For more on Omar Khadr and the Military Commissions, see my new book The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK). To receive new articles in your inbox, please subscribe to my RSS feed.
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